Citation Nr: 21000535
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 15-00 202A
DATE: January 5, 2021

ORDER

Service connection for hypertension is denied.

A disability rating in excess of 10 percent for service-connected limitation of flexion status-post left knee partial synovectomy with degenerative joint disease (left knee limitation of flexion) is denied.

An initial disability rating in excess of 30 percent for service-connected limitation of extension left knee associated with limitation of flexion status-post left knee partial synovectomy with degenerative joint disease (left knee limitation of extension) is denied.

An initial disability rating of 10 percent, but no higher, for service-connected instability of left knee associated with limitation of flexion status-post left knee partial synovectomy with degenerative joint disease (left knee instability) for the period on appeal prior to February 24, 2015 is granted.

A disability rating of 20 percent, but no higher, for service-connected left knee instability from February 25, 2015 through April 17, 2016 is granted.

A disability rating in excess of 30 percent for service-connected left knee instability for the period from April 18, 2016 is denied.

A disability rating of 40 percent, but no higher, for service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome for the period on appeal prior to April 18, 2016 is granted.

A disability rating in excess of 40 percent service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome for the period from April 18, 2016 is denied.

An initial disability rating in excess of 20 percent for service-connected sciatic neuropathy of the right lower extremity associated with degenerative disc disease of the lumbar spine with intervertebral disc syndrome (right lower extremity radiculopathy of the sciatic nerve) is denied.

An initial disability rating in excess of 20 percent for service-connected sciatic neuropathy of the left lower extremity with degenerative disc disease of the lumbar spine with intervertebral disc syndrome (left lower extremity radiculopathy of the sciatic nerve) is denied.

An initial disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine for the period on appeal prior to April 2, 2010 is denied.

A disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 2, 2010 through May 2, 2010 is denied.

A disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 3, 2010 through April 13, 2014 is denied.

A disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 14, 2014 through May 17, 2015 is denied.

A disability rating in excess of 30 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 18, 2015 is denied.

An initial disability rating in excess of 20 percent for service-connected right (dominant) upper extremity radiculopathy of C6 nerve root associated with ankylosing spondylosis and degenerative arthritis of cervical spine (right/dominant upper extremity radiculopathy of the C6 nerve root) for the period on appeal from October 16, 2008 through October 15, 2008 is denied.

A disability rating of 20 percent, but no higher, for service-connected right/dominant upper extremity radiculopathy of the C6 nerve root from October 16, 2008 through April 17, 2016 is granted.

A disability rating in excess of 40 percent for service-connected right/dominant upper extremity radiculopathy of all radicular groups (previously evaluated as right upper extremity C6 nerve root radiculopathy) from April 18, 2016 is denied.

An initial disability rating of 20 percent, but no higher, for service-connected left (nondominant) upper extremity radiculopathy of all radicular groups associated with ankylosing spondylosis and degenerative arthritis of the cervical spine (left/nondominant upper extremity radiculopathy of the C6 nerve root), for the period on appeal prior to April 18, 2016 is granted.

A disability rating in excess of 30 percent for service-connected left left/nondominant upper extremity radiculopathy of the C6 nerve root from April 18, 2016 is denied.

FINDINGS OF FACT

1. The Veteran’s hypertension did not have onset during service or within one year of separation and is not otherwise related to service.

2. During the entire period on appeal, the Veteran’s service-connected left knee limitation of flexion has not been limited to 45 degrees or less.

3. The Veteran is in receipt of the maximum 30 percent rating available for his service-connected left knee limitation of extension.

4. For the period on appeal prior to February 24, 2015, the Veteran’s left knee disability was manifested by slight lateral instability.

5. For the period from February 24, 2015 through April 17, 2016, the Veteran’s left knee disability was manifested by lateral instability, locking, pain, and effusion into the joint, resulting in an overall disability picture that more nearly approximated moderate lateral instability.

6. From April 18, 2016, the Veteran is in receipt of the maximum 30 percent rating available for his left knee instability, and it would be pyramiding to assign a separate rating for locking, pain, and effusion into the joint.

7. For the period on appeal prior to April 18, 2016, the Veteran’s service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome was manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less, with consideration of additional functional loss due to flare-ups and repeated use.

8. The Veteran’s service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome has never been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 

9. During the entire period on appeal, the Veteran’s service-connected right lower extremity radiculopathy of the sciatic nerve has been manifested by no worse than moderate incomplete paralysis of the sciatic nerve.

10. During the entire period on appeal, the Veteran’s service-connected left lower extremity radiculopathy of the sciatic nerve has been manifested by no worse than moderate incomplete paralysis of the sciatic nerve.

11. For the period on appeal prior to April 2, 2010, the Veteran’s service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine was not manifested by forward flexion of the cervical spine limited to 30 degrees or less, combined range of motion of the cervical spine limited to 170 degrees or less, 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.

12. From April 2, 2010 through May 2, 2010, the Veteran’s service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine was not manifested by forward flexion of the cervical spine limited to 15 degrees or less, or ankylosis of the cervical spine.

13. From May 3, 2010 through April 13, 2014, the Veteran’s service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine was not manifested by forward flexion of the cervical spine limited to 30 degrees or less, combined range of motion of the cervical spine limited to 170 degrees or less, 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.

14. From April 14, 2014 through May 17, 2015, the Veteran’s service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine was not manifested by forward flexion of the cervical spine limited to 15 degrees or less, or ankylosis of the cervical spine.

15. From May 18, 2015, the Veteran’s service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine was not manifested by unfavorable ankylosis of the cervical spine.

16. For the period on appeal from August 12, 2008 through October 15, 2008, the Veteran’s service-connected right/dominant upper extremity radiculopathy of the C6 nerve root was manifested by no worse than mild incomplete paralysis of the C6 nerve root.

17. From October 16, 2008 through April 17, 2016, the Veteran’s service-connected right/dominant upper extremity radiculopathy of the C6 nerve root was manifested by mild incomplete paralysis of the C6 nerve root.

18. From April 18, 2016, the Veteran’s service-connected right/dominant upper extremity radiculopathy of all radicular groups (previously evaluated as the C6 nerve root) is manifested by no worse than moderate incomplete paralysis.

19. For the entire period on appeal prior to April 18, 2016, the Veteran’s service-connected left/nondominant upper extremity radiculopathy of the C6 nerve root was manifested by mild incomplete paralysis of the C6 nerve root.

20. From April 18, 2016, the Veteran’s service-connected left/nondominant upper extremity radiculopathy of the C6 nerve root was manifested by no worse than moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303, 3.307.  

2. The criteria for an disability rating in excess of 10 percent for service-connected left knee limitation of flexion have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5260.

3. The criteria for an initial disability rating in excess of 30 percent for service-connected left knee limitation of extension have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261.

4. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial disability rating of 10 percent, but no higher, for service-connected left knee instability prior to February 24, 2015 have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257.

5. The criteria for a disability rating of 20 percent, but no higher, for service-connected left knee instability from February 24, 2015 through April 17, 2016 have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5258.

6. The criteria for a disability rating in excess of 30 percent for service-connected left knee instability from April 18, 2016 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5257, 5258.

7. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial disability rating of 40 percent, but no higher, for service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome prior to April 18, 2016 have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5243.

8. The criteria for a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome from April 18, 2016 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5243.

9. The criteria for an initial disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy of the sciatic nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8520.

10. The criteria for an initial disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the sciatic nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8520.

11. The criteria for an initial disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine prior to April 2, 2010 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5240.

12. The criteria for a disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 2, 2010 through May 2, 2010 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5240.

13. The criteria for a disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 3, 2010 through April 13, 2014 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5240.

14. The criteria for a disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 14, 2014 through May 17, 2015 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5240.

15. The criteria for a disability rating in excess of 30 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 18, 2015 have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242-5240.

16. The criteria for an initial disability rating in excess of 20 percent for service-connected right/dominant upper extremity radiculopathy of the C6 nerve root from August 12, 2008 through October 15, 2008 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8513.

17. Resolving reasonable doubt in the Veteran’s favor, the criteria for a disability rating of 20 percent for service-connected right/dominant upper extremity radiculopathy of the C6 nerve root from October 16, 2008 through April 17, 2016 are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8513.

18. The criteria for a disability rating in excess of 40 percent for service-connected right/dominant upper extremity radiculopathy of all radicular groups (previously evaluated as right upper extremity radiculopathy of the C6 nerve root) from April 18, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8513.

19. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial disability rating of 20 percent, but no higher, for service-connected left/nondominant upper extremity radiculopathy of the C6 nerve root for the entire period on appeal prior to April 18, 2016 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8513.

20. The criteria for a disability rating in excess of 30 percent for service-connected left/nondominant upper extremity radiculopathy of the C6 nerve root from April 18, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8513.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1980 to June 1995.

This case is before the Board of Veterans’ Appeals (Board) on appeal from November 2012, August 2014, and June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions.  

In the November 2012 decision, the RO granted service connection for left lower extremity radiculopathy of the sciatic nerve and assigned an initial disability rating of 20 percent, effective from August 25, 2010, and increased the rating for the service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome to 20 percent, effective August 25, 2010. In addition, the RO granted service connection for erectile dysfunction with an initial noncompensable disability rating; and, granted service connection for bladder dysfunction and assigned an initial 10 percent rating, both effective from August 25, 2010.

In September 2013, VA received the Veteran’s NOD.  The RO issued the SOC in January 2015, and the Veteran’s VA Form 9, substantive appeal was received in January 2015. 

Meanwhile, in the August 2014 decision, the RO denied entitlement to service connection for hypertension, a psychiatric disorder, rheumatoid arthritis, residuals of a total right knee replacement; and, confirmed and continued a previously denied claim of service connection for gastroesophageal reflux disease (GERD).  In addition, the RO confirmed and continued the 10 percent rating previously assigned for the Veteran’s service-connected left knee status post partial synovectomy.  In September 2014, VA received the Veteran’s NOD.  In January 2015, the RO issued the SOC addressing all of the claims except for the service connection claim for GERD.  In January 2015, VA received the Veteran’s VA Form 9 appeal to the Board. Later, in February 2016, the RO issued a SOC addressing the GERD service connection claim, and the Veteran timely appealed with a VA Form 9, received in February 2016.

Meanwhile, in the June 2015 decision, the RO granted service connection for ankylosing spondylosis and degenerative arthritis of the cervical spine and assigned an initial disability rating of 10 percent, from August 12, 2008, a 20 percent disability rating, effective from April 2, 2010, a 10 percent disability rating, effective from May 3, 2010, and a 30 percent disability rating, effective from May 18, 2015.  The RO also granted service connection for an accompanying scar, and assigned a noncompensable rating.  In July 2015, VA received the Veteran’s NOD.  The Veteran appealed the initial ratings assigned for the cervical spine disability and the scar; and, appealed the effective dates of service connection.  In June 2016, the RO issued a SOC.  In July 2016, VA received the Veteran’s VA Form 9 appeal to the Board.

In a June 2016 rating decision, issued during the pendency of the appeal, the RO granted service connection right/dominant and left/non-dominant upper extremity radiculopathy of the C6 nerve, with, for the dominant side, an initial disability rating of 20 percent effective from August 12, 2008, a noncompensable rating effective from October 16, 2008, and a 40 percent rating effective from April 18, 2016; for the non-dominant side, the RO implemented a 30 percent initial rating, effective from April 18, 2016.  Furthermore, the RO increased the disability rating for the ankylosing spondylosis and degenerative arthritis of the cervical spine from 10 percent to 20 percent for the period from April 14, 2014 through May 17, 2015 (and continued the 30 percent rating that was already in effect from May 18, 2015).

In a March 10, 2017 rating decision, the RO granted a total disability rating based on individual unemployability (TDIU), effective from April 18, 2016.

In a March 21, 2017 rating decision, the RO granted service connection for right lower extremity radiculopathy of the sciatic nerve and assigned a 20 percent initial disability rating, effective from April 18, 2016; granted an increased disability rating to 40 percent for the service-connected degenerative disc disease of the lumbar spine effective from April 18, 2016; and increased the bladder dysfunction associated with the lumbar spine disability to 20 percent, effective from August 9, 2016.  

With respect to the left knee, the March 21, 2017 rating decision granted service connection for limitation of extension of the left knee and assigned an initial disability rating of 30 percent, effective April 18, 2016.  Because the extension is compensable, but the flexion is not, the RO discontinued the previously assigned 10 percent disability rating for the service-connected left knee arthritis on the basis of limited flexion, effective April 18, 2016, and assigned the 30 percent rating based on limited extension in lieu thereof, effective on the same day as the reduction to 0 percent.  Additionally, the RO granted a separate compensable rating of 30 percent for left knee instability, effective from April 18, 2016; granted service connection for a left knee scar and rating it as noncompensable.  Finally, the March 21, 2017 rating decision assigned an earlier effective date of April 12, 2012 for the TDIU, the date following the Veteran’s last day of employment on April 11, 2012.  See November 2012 VA Form 21-8940.

In a June 2018 decision, the Board granted service connection for a total right knee replacement; denied service connection for rheumatoid arthritis, restored the 10 percent rating for left knee limitation of flexion; denied higher ratings for the service-connected bladder dysfunction; denied a compensable rating for erectile dysfunction, but granted special monthly compensation for loss of use of a creative organ; denied compensable ratings for the service-connected scars; and denied an earlier effective date for the grant of service connection for the cervical spine disability and the accompanying scar.  Accordingly, these issues are no longer in appellate status or before the Board. 

Also in the June 2018 decision, the RO reopened previously denied claim of service connection for GERD and remanded that issue, along with the remaining issues on appeal for further development and adjudicative action.  

Finally, before the case was sent back to the Board, the RO issued an August 2020 rating decision that granted service connection for GERD and a mood disorder with depressive features (claimed as depression).  As this constitutes full grants of the benefits sought on appeal with respect to those issues, they are no longer in appellate status or before the Board at this time.

Service Connection

1. Entitlement to service connection for hypertension.

The Veteran seeks service connection for hypertension.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, including hypertension, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a).

The term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater, or systolic blood pressure is predominantly 160 or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101 n.1. A diagnosis of hypertension “must be confirmed by readings two or more times on at least three different days.” Id. The requirement of multiple blood pressure readings to be taken over multiple days as specified in Note (1) of Diagnostic Code 7101 applies to confirming the existence of hypertension. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013).

Service treatment records (STRs) from January 1983 reveal that the Veteran’s blood pressure was high after several readings (154/92 and 156/78) were taken that day.  See STRs dated January 17, 1983.  Readings taken on one day in December 1983 revealed blood pressure of 162/109 and 160/84.  See STRs dated December 22, 1983.

In March 1988, the Veteran was prescribed a program of blood pressure control as part of a coronary artery risk assessment.  Readings taken at the time revealed blood pressure of 124/68 and 130/86.  See STRs dated March 24, 1988.  

In April 1988, the Veteran was given a 5-day hypertension screening.  Average blood pressure was 130/80 in the left arm and 128/78 in the right arm.  See STRs dated April 25, 1988.

During the remainder of service, blood pressure readings of 142/92 (in May 1992) and 152/78 (in February 1994) were noted.  See STRs dated May 7, 1992 and February 19, 1994.  Furthermore, numerous other in-service blood pressure readings with diastolic blood pressure below 90 mm. and systolic blood pressure below 160 mm. are of record.  See, e.g. STRs dated October 6, 1981 (124/84), October 23, 1984 (132/82), July 8, 1987 (124/68), and August 16, 1988 (110/70).  No diagnosis of hypertension was recorded at separation from service.

A private treatment note from January 2004 reflects an assessment of “diastolic hypertension,” and suggested that further blood pressure readings be taken the following month for confirmation.  Dr. C., private treatment note dated January 23, 2004.  Nevertheless, there is no evidence of medication for hypertension at that time or within several years after.

Turning to the medical examinations and opinions of record, the Veteran received VA examinations for hypertension in November 2013, July 2014, and September 2018.

In the November 2013 DBQ, the examiner provided a diagnosis of systolic hypertension.  Furthermore, he noted “signs of b/p readings” which “showed pattern of elevated systolic/diastolic readings, starting back in 4/1981” and “this is evidence of more than isolated systolic hypertension.”  The examiner also noted that the Veteran was counseled for high blood pressure several times during service.

Notwithstanding, in the July 2014 opinion, the July 2014 examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by an in-service injury, event or illness.  He reasoned that “review of BP readings during service showed some borderline readings, but overall did not meet criteria for a diagnosis of hypertension at that time.”  The examiner found that “available records after service did not show a diagnosis of hypertension and initiation of treatment until 2007-2008, and concluded that “there was not continuity of records to support an earlier diagnosis or hypertension related to service.”

In the June 2018 Board decision, the Board found that the July 2014 examiner failed to address the January 2004 positive assessment for hypertension in private treatment records and the November 2013 examiner’s description of “more than isolated systolic hypertension” during service.  However, the remand order only specifically instructed consideration of the November 2013 DBQ.

Pursuant to the June 2018 remand, the Veteran received an additional VA examination and opinion for hypertension in September 2018.  The September 2018 examiner concluded that the Veteran’s hypertension was less likely than not related to service.  In this regard, he reasoned that “the Veteran’s [STRs] show isolated elevations of his blood pressure,” but “that at no point during his military service did he meet the VA criteria for a diagnosis of hypertension or isolated systolic hypertension” and was not “diagnosed with, or treated medically for, hypertension in service.”  Furthermore, the examiner elaborated on the significance of isolated high blood pressure readings, noting that “isolated high blood pressure readings are commonly associated with pain, and/or anxious patients – i.e. “White coat syndrome” – without a diagnosis of hypertension” and “if the elevated readings are not sustained, consecutively, over multiple readings on multiple days, a diagnosis of hypertension is not warranted.”  Finally, he noted that the Veteran was not diagnosed with hypertension for many years after service.

Regarding the November 2013 DBQ, the examiner provided no articulable opinion regarding service connection.  Nevertheless, the finding of “more than isolated systolic hypertension” during service is afforded some probative value.

Regarding the July 2014 opinion, the examiner failed to comment on the significance of the above finding by the November 2013 examiner and misstated the Veteran’s date of initial diagnosis of hypertension.  As such, the July 2014 opinion on service connection is afforded no probative value.  Notwithstanding, the examiner’s finding that the Veteran did not meet the criteria for diagnosis of hypertension during service is afforded some probative value.

Finally, regarding the September 2018 opinion, the examiner provided a fully articulated opinion based on full review of the pertinent lay and medical evidence of record, including the evidence identified by the June 2018 Board remand directives, and VA regulations.  Furthermore, the examiner commented on the significance of the Veteran’s high blood pressure readings during service.  Given the above, the September 2018 opinion is afforded significant probative value.

Based on the foregoing, the preponderance of the evidence shows that the Veteran’s hypertension was not incurred during service, did not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service.  As discussed above, a diagnosis of hypertension requires diastolic blood pressure of predominantly 90 mm. or greater, or systolic blood pressure of predominantly 160 or greater, and for VA purposes, must be confirmed by readings two or more times on at least three different days.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 n.1.  As noted by the July 2014 and September 2018 examiners, there is no evidence that no evidence of a diagnosis of hypertension meeting the above criteria during service or within one year of service, and there is no diagnosis of hypertension until at least approximately 9 years after separation.

As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable.  Accordingly, service connection for hypertension is not warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 

Increased Rating

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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). 

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

2. Entitlement to a disability rating in excess of 10 percent for service-connected left knee limitation of flexion.

3. Entitlement to an initial disability rating in excess of 30 percent for service-connected left knee limitation of extension.

4. Entitlement to a separate disability rating for service-connected left knee instability for the period on appeal prior to April 18, 2016.

5. Entitlement to a disability rating in excess of 30 percent for service-connected left knee instability for the period from April 18, 2016.

The Veteran seeks higher disability ratings for his service-connected left knee limitation of flexion, limitation of extension, and instability.

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; 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 criteria.”). 

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint.” 

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

The Veteran’s currently assigned disability ratings for his service-connected left knee include left knee limitation of flexion, currently rated as 10 percent disabling from August 12, 2008 under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260; left knee limitation of extension, currently rated as 30 percent disabling from April 18, 2016 under 38 C.F.R. § 4.71a, Diagnostic Code 5261; and left knee instability, currently rated as 30 percent disabling from April 18, 2016 under 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Regarding the Veteran’s 10 percent rating under Diagnostic Code 5003-5260, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  The hyphenated codes for the Veteran’s status-post left knee partial synovectomy with degenerative joint disease reflect that arthritis, degenerative is the service-connected disability under Diagnostic Code 5003 and limitation of flexion is the basis of the rating assigned under Diagnostic Code 5260. 

Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating. A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees. A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees. The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees. A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. See VAOPGCPREC 9-04 (September 17, 2004).

Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of the knee.  Under this diagnostic code, slight recurrent subluxation or lateral instability warrants a 10 percent disability rating.  A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability.  Severe recurrent subluxation or lateral instability warrants a 30 percent disability rating.  The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257 provides that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee.  English v. Wilkie, 30 Vet. App. 347, 349 (2018). 

Initially, prior to the period on appeal, the Veteran underwent a VA examination of his left knee in September 2008.  Both flexion and extension of the left knee were normal (to 140 degrees for flexion, to 0 degrees for extension).  During the examination, the Veteran reported symptoms of stiffness, swelling, giving way, lack of endurance and “rubbing” in the front of the knee and functional impairments of difficulty climbing ladders, problems squatting and kneeling, and inability to run “at all.”  The examiner concluded that there would be no additional functional loss due to fatigue, weakness, lack of endurance, and/or incoordination after repeated use over time.  Joint stability tests for the left knee were within normal limits.  

During the period on appeal, the Veteran received an initial VA examination of his left knee in November 2013.  Left knee flexion was limited to 110 degrees and extension was normal.  The examiner noted less movement than normal and pain on movement as contributing factors of disability.  Joint stability tests revealed no objective evidence of instability.  There was no evidence of ankylosis.  The examiner noted a prior left knee meniscal tear with frequent episodes of joint “locking” and joint pain.  Moreover, he found that “there are no contributing factors of weakness, fatiguability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functionality of the knee joint.”  Regarding functional impact, the examiner recorded functional impairment to kneeling, stooping, squatting, climbing, carrying a load, standing for long periods, running, climbing stairs, and lateral movement.

Next, the Veteran received a VA examination of his left knee in February 2015.  Left knee flexion was limited to 120 degrees and extension was normal.  Pain prevented performance of repetitive use testing.  During the examination, the Veteran reported symptoms of left knee pain and instability and was observed to walk with a noticeable limp.  The examiner noted contributing factors of disability including less movement than normal, swelling, instability of stain, disturbance of locomotion, interference with sitting, and interference with standing.  The examiner noted that pain, weakness, fatiguability, and incoordination would additionally limit functional ability after repeated use and during flare-ups but could not describe the additional function loss in terms of loss of ROM.  Joint stability testing revealed “1+” medial and lateral instability in the left knee.  There was again no evidence of ankylosis.  The examiner noted the Veteran’s history of left knee meniscal tear and recorded frequent episodes of joint “locking,” pain, and effusion.  The Veteran reported that he uses a cane during flare-ups, or “[approximately] 20% of the time.”  Regarding functional impact, the examiner found that the Veteran “cannot do physical labor, or jobs which require prolonged walking and standing.”

The Veteran received another VA examination for his left knee in April 2016.  Flexion was limited to 80 degrees and extension was limited to 20 degrees.  After 3 repetitions, left knee flexion was further limited to 65 degrees.  The examiner estimated flexion limited to 65 degrees and extension limited to 20 degrees due to pain, fatigue, weakness, lack of endurance, and incoordination.  During flare-ups, flexion was estimated to deteriorate to 60 degrees due to pain, fatigue, weakness, lack of endurance, and incoordination.  During the examination, the Veteran described flare-ups of the left knee as causing pain (severe enough to keep him awake at night) and instability, requiring him to use a walking stick for gait and stabilization.  The examiner noted contributing factors of disability including less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing.  A history of slight left knee lateral instability and recurrent effusion was noted.  Joint stability tests revealed “2+” for left knee posterior instability and “3+” for medial and lateral instability.  There was no evidence of ankylosis.  Regarding the Veteran’s meniscal conditions, the examiner noted frequent episodes of joint “locking” and pain.  The Veteran reported use of a walking stick for “instability of gait, painful walking, [and] difficulty getting out of [the] chair.”

In the June 2018 Board decision, the Board concluded that the November 2013, February 2015, and April 2016 VA examinations did not comply with Correia and explicitly instructed inclusion of findings necessary under Correia.

Pursuant to the June 2018 Board remand, the Veteran most recently received a VA examination for his left knee in September 2018.  Flexion was limited to 120 degrees and extension was normal.  The examiner concluded that there would be no additional functional loss after repeated use over time and during flare-ups due to pain, weakness, fatiguability, and/or incoordination.  However, during the examination, the Veteran reported that he would become “unable to walk” after repeated use over time.  The examiner noted contributing factors of disability including disturbance of locomotion and interference with standing.  Furthermore, he recorded a history of lateral instability.  Nevertheless, the examiner was unable to perform objective joint stability testing.  There was no evidence of ankylosis.  A history of left knee meniscal tear was noted.  The Veteran reported constant use of a cane.  Finally, regarding Correia findings, the examiner noted objective evidence of pain on passive ROM of the left knee and on non-weight bearing testing of the left knee.  Testing for the right knee was also completed.

Based on the foregoing, an initial disability rating in excess of 10 percent for service-connected left knee limitation of flexion is not warranted at any time during the period on appeal.  In this regard, left knee flexion has been limited to no less than 60 degrees during the period on appeal, to include consideration of additional functional loss after repeated use and during flare-ups.  Accordingly, the criteria for an initial disability rating in excess of 10 percent for left knee limitation of flexion have not been met.

Furthermore, a disability rating in excess of 30 percent is not warranted for the service-connected left knee limitation of extension.  Regarding the rating for left knee limitation of extension, the Veteran is currently in receipt of the maximum 30 percent rating for limitation of extension.  As knee limitation of extension has its own code, Diagnostic Code 5261, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy).  The Veteran has not raised any other issues, to include entitlement to an extraschedular rating for this condition, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). 

Moreover, the Veteran has not contended that a separate rating for limitation of extension is warranted prior to April 18, 2016.  However, the evidence of record shows that the Veteran’s left knee extension was not limited beyond 0 degrees prior to April 18, 2016, to include consideration of additional functional loss after repeated use and during flare-ups.  Accordingly, the criteria for an initial disability rating in excess of 30 percent from April 18, 2016 and a separate compensable disability rating for left knee limitation of extension prior to April 18, 2016 have not been met.

Notwithstanding, consideration has been given to availability of compensation under Diagnostic Codes 5258 and 5259.  Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for removal of the semi-lunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. This is the only schedular rating assignable under Diagnostic Code 5259.  Regarding the availability of ratings under these codes, the United States Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under Codes 5257 or 5261 (and by Code 5260) or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Additionally, the Board has considered whether a separate disability rating is warranted for left knee instability prior to April 18, 2016.  Prior to February 24, 2015, there is competent lay evidence of left knee instability.  In this regard, during the November 2013 examination, symptoms of left knee giving way and locking were noted.  Accordingly, the criteria for a separate 10 percent initial disability rating for left knee instability are met from November 21, 2012, the date that VA received the Veteran’s claim for a disability rating in excess of 10 percent for the service-connected left knee partial synovectomy with degenerative joint disease. 

However, an initial disability rating in excess of 10 percent for left knee instability from November 21, 2012 through February 23, 2015 is not warranted.  In this regard, the record does not reveal any objective evidence of left knee instability during examinations or otherwise, prior to February 24, 2015.  Accordingly, the criteria in excess of 10 percent for left knee instability from November 21, 2012 through February 23, 2015 have not been met.

However, the criteria are more nearly approximated for the assignment of a 20 percent disability rating for left knee instability from February 24, 2015 through April 17, 2016.  In this regard, the record reflects that the Veteran demonstrated moderate lateral instability of the left knee, shown by continued giving way and locking accompanied by objective indications of lateral instability. 

Furthermore, the February 2015 examination revealed evidence of frequent episodes of joint locking, pain, and effusion.  Nevertheless, assignment of a separate rating for removal of semilunar cartilage under 38 C.F.R. § 4.71a, Diagnostic Code 5258 would constitute impermissible pyramiding.  38 C.F.R. § 4.14.  Specifically, the Veteran’s symptoms of locking and pain due to removal of semi-lunar cartilage are not distinct from instability of the left knee and pain on flexion and extension.  Accordingly, only the 20 percent rating for moderate lateral instability from February 24, 2015 to April 18, 2016 is warranted. Notably, as 20 percent is the maximum assignable schedular rating under Diagnostic Code 5258, there is no prejudice in the assignment of a 20 percent rating under Diagnostic Code 5257, in lieu of assigning a rating under Diagnostic Code 5258.

Additionally, regarding the period from February 24, 2015 through April 17, 2016, there is no evidence of severe recurrent subluxation or lateral instability during this period.  Notably, the February checked “none” for “history of recurrent subluxation” and “history of lateral instability,” and medial and lateral instability tests revealed only 1+ measurements.  Therefore, a disability rating in excess of 20 percent for the service-connected instability of the left knee from February 24, 2015 through April 17, 2016 is not warranted.

Finally, from April 18, 2016, the Veteran is in receipt of the maximum 30 percent rating available for instability.  Accordingly, no higher rating is available under Diagnostic Code 5257.  As knee instability has its own code, Diagnostic Code 5257, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland, 27 Vet. App. at 338.  The Veteran has not raised any other issues, to include entitlement to an extraschedular rating for this condition, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 366.  Accordingly, from April 18, 2016, no higher rating is available for the Veteran’s left knee instability. 

6. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome for the period prior to April 18, 2016.

7. Entitlement to a disability rating in excess of 40 percent service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome for the period from April 18, 2016.

The Veteran seeks higher disability ratings for his service-connected degenerative disc disease of the lumbar spine with interverbal disc syndrome (IVDS).  The Veteran is currently in receipt of an initial disability rating of 20 percent prior to April 18, 2016 and a disability rating of 40 percent from April 18, 2016 under Diagnostic Code 5242-5243.  The hyphenated codes for the Veteran’s degenerative disc disease of the lumbar spine with IVDS reflect that degenerative arthritis of the spine is the service-connected disability and IVDS is the basis of the rating assigned.

Currently, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, IVDS, under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. 

Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. 

Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An “incapacitating episode” under this formula is defined as “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” Id. at Note 1. 

The General Rating Formula provides a schedule of ratings for spine disabilities 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 an injury or disease. 

During the period on appeal, the Veteran received an initial VA examination for his low back in October 2010.  Forward flexion of the thoracolumbar spine was recorded as limited to 40 degrees.  Repetitive ROM testing was not possible “because of severe pain in the lower back with range of motion.”  During the examination, the Veteran reported “constant” pain from his back, with symptoms of stiffness, fatigue, spasms, decreased ROM, paresthesia and numbness.  Regarding flare-ups, he indicated symptoms of stiffness, pain, weakness, fatigue, incoordination, numbness, and decreased ROM.  Moreover, functional impairments to walking, running, lifting, squatting, bending, and twisting at the waist were noted.  There was no evidence of ankylosis of the thoracolumbar spine.  Moreover, there was no indication of bedrest due to IVDS within the past 12 months.

The Veteran next received a VA examination for his low back in November 2013.  Forward flexion was given as limited to 35 degrees.  There was no additional functional loss after 3 repetitions.  The examiner noted contributing factors of disability including less movement than normal and pain on movement.  However, he opined that “there are no contributing factors of weakness, fatiguability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the thoracolumbar spine.”  The examiner noted functional impairment to bending, lifting, carrying a load, and standing or walking for extended periods.  There was again no evidence of ankylosis of the thoracolumbar spine or bedrest due to IVDS within the past 12 months.

The Veteran received a further VA examination for his low back in April 2016.  During the examination, forward flexion of the thoracolumbar spine was limited to 20 degrees.  After 3 repetitions, forward flexion was limited to 15 degrees.  Regarding repeated use over time and flare-ups, the examiner noted that forward flexion would be further limited to 10 degrees due to factors of pain, fatigue, weakness, lack of endurance, and incoordination.  Furthermore, she noted contributing factors of disability of less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing.  There was no evidence of ankylosis.  However, the examiner noted bedrest having a total duration of at least one but less than two weeks within the past 12 months due to IVDS.  

In the June 2018 Board decision, the Board concluded that the October 2010, November 2013, and April 2016 VA examinations did not comply with Correia and explicitly instructed inclusion of findings necessary under Correia.

The Veteran most recently received a VA examination for his low back in October 2018.  During the examination, forward flexion of the thoracolumbar spine was recorded as limited to 50 degrees.  There was no additional functional loss after 3 repetitions.  Furthermore, the examiner concluded that there would no additional functional loss following repeated use over time or during flare-ups due to pain, weakness, fatiguability, and/or incoordination.  Nevertheless, regarding flare-ups, the Veteran described “intense pain” in the low back; however, the examiner did not elicit any information regarding frequency and duration of flare-ups.  There was no evidence of ankylosis or bedrest due to IVDS within the past 12 months.  Regarding Correia, there was no evidence of pain on passive ROM testing of the back and objective evidence of pain on non-weightbearing testing of the back.

Based on the foregoing, a 40 percent disability rating for the Veteran’s service-connected degenerative disc disease of the lumbar spine with IVDS prior to April 18, 2016 is warranted.  In this regard, with consideration of additional functional limitation after repeated use and during flare-ups, forward flexion of the thoracolumbar spine was limited to 30 degrees or less.  Notably, the November 2013 examiner found that forward flexion was limited to 35 degrees.  Additionally, during the October 2010 examination, the Veteran competently reported symptoms of stiffness, pain, weakness, fatigue, and incoordination during flare-ups.  Although the November 2013 examiner did not indicate that there were symptoms weakness, fatiguability, incoordination, or pain that would cause additional functional loss after repeated use over time or during flare-ups, he did note functional impairment to standing or walking for extended periods.  As such, prior to April 18, 2016, the evidence shows that the Veteran experienced additional functional loss after repeated use over time and during flare-ups.  Accordingly, the criteria for a 40 percent rating for the degenerative disc disease of the lumbar spine with IVDS prior to April 18, 2016 are met.  

However, a disability rating in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine with IVDS is not warranted at any point during the period on appeal.  Specifically, there is no evidence of ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months due to IVDS.  Accordingly, the criteria for a disability rating in excess of 40 percent for the degenerative disc disease of the lumbar spine with IVDS have not been met.

8. Entitlement to an initial disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy of the sciatic nerve.

9. Entitlement to an initial disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the sciatic nerve.

The Veteran seeks initial disability ratings in excess of 20 percent for his service-connected right and left lower extremity radiculopathy of the sciatic nerve.

The Veteran’s right and left lower extremity radiculopathy are currently each evaluated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520.  The initial rating for the right lower extremity radiculopathy is effective from April 18, 2016.  The initial rating for the left lower extremity radiculopathy is effective from August 25, 2010.

Neurological disabilities related to the sciatic nerve are evaluated under Diagnostic Code 8520.  Diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a.  The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve.  Id.  When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree.  Id.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury to the nerve involved, with a maximum equal to severe, incomplete, paralysis.  38 C.F.R. § 4.123.  Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis.  38 C.F.R. § 4.124.

With respect to Diagnostic Code 8520, a disability rating of 10 percent is warranted with mild incomplete paralysis.  A disability rating of 20 percent is warranted with moderate incomplete paralysis.  A disability rating of 40 percent is warranted with moderately severe incomplete paralysis.  A disability rating of 60 percent is warranted with severe incomplete paralysis, with marked muscular atrophy.  Finally, the highest schedular rating allowable under Diagnostic Code 8520 is for 80 percent, which is appropriate when there is complete paralysis of the sciatic nerve.  The rating criteria indicate that complete paralysis is present when the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost.  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 on 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. See 38 C.F.R. §§ 4.123, 4.124.

During the October 2010 VA examination for the Veteran’s low back, the Veteran reported symptoms of pain, paresthesia, and numbness in the left buttocks and thigh.  No similar symptoms were noted for the right lower extremity.  The examiner noted sensory deficits to the left upper anterior thigh and left anterior mid-thigh.  Reflex tests for both right and left lower extremities were normal.

During the November 2013 VA examination for the Veteran’s low back, a straight leg test was positive for radiculopathy in the left lower extremity, but not the right.  Sensation was completely absent in the upper anterior thigh but was otherwise normal.  Reflexes were again normal in both right and left lower extremities.  The examiner noted no pain and severe numbness in the left lower extremity and no symptoms in the right lower extremity.  The examiner noted that the Veteran’s symptoms in the left lower extremity resulted from moderate incomplete paralysis of the femoral nerve.

The Veteran initially received a VA examination for peripheral nerve conditions in April 2016.  During the examination, severe constant pain was noted in both the right and left lower extremities; paradoxically, however, moderate intermittent pain was noted the right lower extremity.  Additionally, the examiner recorded moderate right lower and severe left lower extremity paresthesias and/or dysesthesias, and moderate right lower and severe left lower extremity numbness.  Deep tendon reflexes (DTRs) in the right knee were absent and were hypoactive in the left ankle.  Sensation was decreased in the left thigh.  There was no evidence of trophic changes.  Unlike the November 2013 examiner, the April 2016 examiner instead noted sciatic involvement.  Furthermore, she concluded that there was only mild incomplete paralysis in the left lower extremity and no paralysis in the right lower extremity.

Finally, during the September 2018 VA examination for the Veteran’s low back, only mild intermittent pain and numbness were noted for the right and left lower extremities.  DTRs and sensory findings were normal.  The examiner noted sciatic involvement for both the right and left lower extremities.

Based on the foregoing, an initial disability rating in excess of 20 percent for the service-connected right lower extremity radiculopathy of the sciatic nerve is not warranted.  Moreover, an initial disability in excess of 20 percent for the service-connected left lower extremity radiculopathy of the sciatic nerve is not warranted.  In this regard, as discussed above, the April 2016 examiner provided inconsistent findings regarding the severity of the right and left lower extremity radiculopathy.  As such, the examination is afforded little probative value as to the severity of the right and left lower extremity radiculopathy.  

The remaining examinations of record show that the Veteran’s right and left lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve during the period on appeal.  Regarding the right lower extremity, loss of reflexes and sensation was demonstrated during the April 2016 examination, but not during any other examination of record.  Notably, there is no evidence of right lower extremity radiculopathy prior to the April 2016 examination.  Regarding the left lower extremity, loss of reflexes and decreased sensation were shown during the November 2013 and April 2016 examinations, but not during the September 2018 examination.  Although the November 2013 examiner noted the presence of severe numbness in the left lower extremity, he concluded that the left lower extremity radiculopathy was moderate in severity overall.  Additionally, there was no evidence of no evidence of pain in the left lower extremity during the November 2013 examination.  There is no evidence of trophic changes in either the right or left extremity during the period on appeal.  Accordingly, the criteria for initial disability ratings in excess of 20 percent for either the right or left lower extremity radiculopathy of the sciatic nerve are not met.

10. Entitlement to an initial disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine for the period prior to April 2, 2010.

11. Entitlement to a disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 2, 2010 through May 2, 2010.

12. Entitlement to a disability rating in excess of 10 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 3, 2010 through April 13, 2014.

13. Entitlement to a disability rating in excess of 20 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 14, 2014 through May 17, 2015.

Entitlement to a disability rating in excess of 30 percent for service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 18, 2015. 

The Veteran seeks increased ratings for his service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine.

The Veteran’s ankylosing spondylosis and degenerative arthritis of the cervical spine is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5240.  The hyphenated codes for the Veteran’s ankylosing spondylosis and degenerative arthritis of the cervical spine indicates that degenerative arthritis of the spine is the service-connected disability and ankylosing spondylosis is the basis of rating.

Diagnostic Codes 5240 and 5242 fall under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, a 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 disability rating 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 disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5240, 5242.

For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5240, 5242, Note (2). The normal combined range of motion of the cervical spine is 340 degrees. Id.

The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1).

Alternatively, the Veteran’s cervical spine disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which provides for a 10 percent evaluation where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1).

The Veteran did not receive an initial VA examination for his neck until May 2015.  However, in October 2008, the Veteran underwent a C5-C6 discectomy.  There is no evidence of convalescence of one month or more.  Therefore, entitlement to a temporary total disability rating for this period will not be addressed by this decision.

Private treatment records from January 2009 reflect limitation of forward flexion of the cervical spine to 35 degrees and combined range of motion of 80 degrees following the C5-C6 discectomy.  See postoperative note dated January 6, 2009.  In April 2010, the Veteran’s forward flexion of the cervical spine was noted to be limited to 30 degrees with combined range of motion of 160 degrees.  See physical therapy initial examination dated April 2, 2010.  However, by May 2010, forward flexion was limited to 35 degrees, with combined range of motion of 200 degrees.  See physical therapy progress note dated May 3, 2010.  Subsequent ROM testing by private treatment providers reflects cervical forward flexion limited to greater than 30 degrees and combined range of motion limited to greater than 170 degrees.  Furthermore, there is no evidence of IVDS of the cervical spine or muscle spasm, guarding, and/or localized tenderness not resulting in abnormal gait or abnormal spinal contour prior to the May 2015 VA examination.

As noted, the Veteran received an initial May 2015 VA examination of his neck.  Forward flexion of the cervical spine was limited to 20 degrees.  Combined range of motion was limited to 160 degrees.  Regarding flare-ups, the Veteran described looking down, lying flat in bed, and turning his head to the right and left as precipitators of flare-ups.  The Veteran was not able to complete repetitive use testing due to a flare-up of neck pain.  Notably, favorable ankylosis of the cervical spine was recorded.  However, there was no evidence IVDS of the cervical spine or unfavorable ankylosis of the entire cervical spine.  Regarding functional impact, the Veteran reported increases in pain during both sitting and standing and difficulty using a computer for more than a few minutes.

The Veteran next received a VA examination for his neck in April 2016.  Forward flexion of the cervical spine was limited to 20 degrees, with decreases to 15 degrees and 10 degrees, respectively, after repeated use and during flare-ups.  Furthermore, the examiner noted unfavorable ankylosis of the entire cervical spine.  Nevertheless, as noted above, she recorded at least some motion of the cervical spine.  Additionally, the examiner recorded  one to two weeks of bedrest within the past months due to IVDS of the cervical spine.  During the examination, the Veteran reported inability to work due to pain in his neck, difficulty turning his head from side to side, and impairment to driving.

In the June 2018 decision, the Board noted that the May 2015 and April 2016 examinations did not comply with Correia and remanded for new examination which included Correia findings.

Pursuant to the June 2018 remand, the Veteran received a VA examination for his neck in September 2018.  Forward flexion of the cervical spine was noted as limited to 30 percent, with no additional functional loss after 3 repetitions.  Moreover, the examiner estimated that there would no additional functional loss after repeated use and during flare-ups due to pain, weakness, fatiguability, and/or incoordination.  No ankylosis or IVDS of the cervical spine was noted.  Regarding Correia, there was no evidence of pain on passive ROM or non-weightbearing testing of the neck.

Regarding the period prior to April 2, 2010, an initial disability rating in excess of 10 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine is not warranted.  In this regard, prior to April 2, 2010, forward flexion of the cervical spine was limited to greater than 30 degrees, with no consistent evidence of combined range of motion of the cervical spine of 170 degrees or less, or muscle spasm, guarding, and/or localized tenderness resulting in abnormal gait or abnormal spinal contour.  There is no lay or medical evidence of increased functional loss after repeated use or during flare-ups during this period.  Furthermore, there is no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the period due to IVDS.  Accordingly, the criteria for an initial disability rating in excess of 10 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine prior to April 2, 2010 have not been met.

Regarding the period from April 2, 2010 through May 2, 2010, a disability rating in excess of 20 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine is not warranted.  Specifically, from April 2, 2010 through May 2, 2010, there is no evidence of forward flexion of the cervical spine of 15 degrees or less or ankylosis of the cervical spine.  There is no lay or medical evidence of increased functional loss after repeated use or during flare-ups during this period.  Moreover, there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the period due to IVDS.  Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 2, 2010 through May 2, 2010 have not been met.

Regarding the period from May 3, 2010 through April 13, 2014, a disability rating in excess of 10 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine is not warranted.  In this regard, from May 3, 2010 through April 13, 2014, forward flexion of the cervical spine was limited to greater than 30 degrees, with no evidence of combined range of motion of the cervical spine of 170 degrees or less, or muscle spasm, guarding, and/or localized tenderness resulting in abnormal gait or abnormal spinal contour.  There is no lay or medical evidence of increased functional loss after repeated use or during flare-ups during this period.  Furthermore, there is no evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the period due to IVDS.  Accordingly, the criteria for an initial disability rating in excess of 10 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 3, 2010 through April 13, 2014 have not been met.

Regarding the period from April 14, 2014 through May 17, 2015, a disability rating in excess of 20 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine is not warranted.  Specifically, from April 14, 2014 through May 17, 2015, there is no evidence of forward flexion of the cervical spine of 15 degrees or less or ankylosis of the cervical spine.  There is no lay or medical evidence of increased functional loss after repeated use or during flare-ups during this period.  Moreover, there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the period due to IVDS.  Accordingly, the criteria for a disability rating in excess of 20 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from April 14, 2014 through May 17, 2015 have not been met.

Regarding the period from May 18, 2015, a disability rating in excess of 30 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine is not warranted.  In this regard, from May 18, 2015, neither unfavorable ankylosis of the entire cervical spine nor incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months due to IVDS was shown.  Although the May 2015 examination did not comply with Correia, this constitutes harmless error, given that higher ratings for the ankylosing spondylosis and degenerative arthritis of the cervical spine require ankylosis.  Furthermore, although the April 2016 examiner noted ankylosis of the cervical spine, this finding was contradicted by the same examiner’s finding of remaining motion of the cervical spine, even after repeated use and during flare-ups.  The September 2018 examiner also concluded that the Veteran did not have ankylosis of the cervical spine.  Therefore, the April 2016 examiner’s notation of ankylosis of the cervical spine is outweighed by other evidence of record.  Accordingly, the criteria for a disability rating in excess of 30 percent for the service-connected ankylosing spondylosis and degenerative arthritis of the cervical spine from May 18, 2015 have not been met.

14. Entitlement to an initial disability rating in excess of 20 percent for service-connected right/dominant upper extremity radiculopathy of the C6 nerve root for the period on appeal from August 12, 2008 through October 15, 2008.

15. Entitlement to a compensable disability rating for service-connected right/dominant upper extremity radiculopathy of the C6 nerve root from October 16, 2008 through April 17, 2016.

16. Entitlement to a disability rating in excess of 40 percent for service-connected right/dominant upper extremity radiculopathy of all radicular groups (previously evaluated as radiculopathy of the C6 nerve root) from April 18, 2016.

17. Entitlement to a separate disability rating for the service-connected left/nondominant upper extremity radiculopathy of the C6 nerve for the period prior on appeal prior to April 18, 2016.

18. Entitlement to a disability rating in excess of 30 percent for service-connected left/nondominant upper extremity radiculopathy of the C6 nerve root from April 18, 2016.

The Veteran seeks increased ratings for his service-connected right and left upper extremity radiculopathy of the C6 nerve root.

The Veteran’s right and left upper extremity radiculopathy of the C6 nerve root is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8513.  

Under Diagnostic Code 8513, mild incomplete paralysis is rated as 20 percent for both the major (dominant) and minor (non-dominant) 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, all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a.

As the Veteran is right-handed, the Veteran’s right upper extremity is the dominant extremity and the left upper extremity is the non-dominant extremity.

Regarding the period prior to October 16, 2008, the September 2008 examination for the Veteran left knee revealed DTRs of +1 (hypoactive) in the biceps and triceps.  During a November 2008 private treatment visit, the Veteran reported bilateral numbness in the fourth and fifth digits of both hands upon waking up in the morning.  DTRs in the left biceps and brachioradialis were +1 bilaterally and +2 in the triceps bilaterally.   See office visit note dated November 24, 2008.  In January 2009, DTRs in the biceps and brachioradialis were +1; furthermore, the Veteran reported numbness “only on an occasional basis at night” in the fifth digit bilaterally.  See office visit note dated January 6, 2009.  A November 2009 physical examination revealed numbness in the hands and at the elbow points.  See office visit note dated November 30, 2009.  

Turning to the period from October 16, 2008 through April 17, 2016, in November and December 2010, the Veteran reported numbness and tingling in the hands.  See office visit notes dated November 22, 2010 and December 16, 2010.  A February 2012 private treatment note documented “sensitivity/pain” in the hands.  See office visit note dated February 10, 2012.  An April 2014 office note revealed sensitivity/pain and numbness in the hands.  See office note dated April 14, 2014.

Prior to the Veteran’s initial VA examination of his neck, numerous sensory examinations of the Veteran’s upper extremities revealed normal results.  See, e.g. office visit notes dated June 21, 2010 and June 2, 2011.  Furthermore, during the period prior to the May 2015 examination, there is no diagnosis of radiculopathy or neuropathy of the in either the right or left upper extremity.

At the May 2015 VA examination of the Veteran’s neck, DTRs were hypoactive in the biceps, triceps, and brachioradialis.  A sensory exam revealed normal results.  Muscle strength in the upper extremities was also normal.  The examiner did not provide a diagnosis of radiculopathy associated with the upper extremities.

During the April 2016 VA examination of the Veteran’s peripheral nerve conditions, the examiner noted both mild constant and intermittent pain in the right and left upper extremities as well as mild paresthesias and/or dysesthesias and mild numbness in both upper extremities.  Muscle strength testing revealed “4/5” strength in elbow flexion and extension, and wrist flexion and extension.  DTRs were given as hypoactive in the right and left biceps, and absent in the right and left triceps and brachioradialis.  Senses in the shoulder, inner/outer forearm, and hands/fingers were decreased.  Strength on elbow extension and flexion, and wrist flexion extension was decreased to 4/5 bilaterally.  There was no evidence of trophic changes.  Regarding severity, the examiner concluded that the Veteran experienced moderate incomplete paralysis of the upper radicular group in both the right and left extremities.

During the September 2018 VA examination of the Veteran’s neck, the examiner noted that there was no evidence of pain, paresthesias and/or dysesthesias due to upper extremity radiculopathy.  DTRs and a sensory examination revealed normal results.  In this regard, the examiner concluded that the Veteran’s right and left upper extremity radiculopathy was “asymptomatic, quiescent.”

Based on the foregoing, regarding the period prior to October 16, 2008, an initial disability rating in excess of 20 percent for the service-connected right/dominant upper extremity radiculopathy is not warranted.  In this regard, prior to October 16, 2008, the evidence shows that the Veteran experienced intermittent numbness limited to the fourth and fifth digits of his right hand and intermittent evidence of hypoactive DTRs in the triceps, biceps, and brachioradialis.  There is no evidence of pain, muscle weakness or atrophy, or trophic changes.  Therefore, given the above, the Veteran’s right upper extremity radiculopathy was no more than mild in severity prior to October 16, 2008.  Accordingly, the criteria for an initial disability rating in excess of 20 percent for the right/dominant upper extremity radiculopathy prior to October 16, 2008 have not been met.

Notwithstanding, for the period from October 16, 2008 through April 17, 2016, a 20 percent disability rating for the service-connected right/dominant upper extremity radiculopathy is warranted.  Specifically, the record reveals that the Veteran continued to experience hand numbness and decreased reflexes in the upper extremities.  Accordingly, given that the Veteran’s symptoms from October 16, 2008 through April 17, 2016 are substantially similar to those occurring prior to October 16, 2008, the criteria for a 20 percent rating for the right/dominant upper extremity radiculopathy from October 16, 2008 through April 17, 2016 are met.

However, from October 16, 2008 through April 17, 2016, there is no evidence of pain, muscle weakness or atrophy, or trophic changes.  Therefore, given the above, the Veteran’s right upper extremity radiculopathy was no more than mild in severity from October 16, 2008 through April 17, 2016.  Accordingly, the criteria for a disability rating in excess of 20 percent for the right/dominant upper extremity radiculopathy from October 16, 2008 through April 17, 2016 have not been met.

Regarding the period from April 18, 2016, a disability rating in excess of 40 percent for service-connected right/dominant upper extremity radiculopathy is not warranted.  In this regard, there is no evidence of severe incomplete paralysis of the dominant upper extremity.  Although DTRs, sensitivity, and muscle strength in the upper extremities were recorded as reduced during the April 2016 examination, they were described as normal during the September 2018 examination.  Furthermore, neither the April 2016 nor September 2018 examiners concluded that the upper extremity radiculopathy resulted in severe incomplete paralysis.  There was also no evidence of trophic changes.  Given the above, from April 18, 2016, the criteria for a disability rating in excess of 40 percent for the right/dominant upper extremity radiculopathy have not been met.

Turning to the left/non-dominant extremity, for the period prior to April 18, 2016, an initial disability rating of 20 percent for the service-connected left/non-dominant upper extremity radiculopathy is warranted.  Specifically, during this period, the left/non-dominant extremity radiculopathy was manifested by symptoms similar to those symptoms experienced in the right upper extremity, including numbness of the hands and fingers, diminished DTRs, and sensitivity and/or pain.  Accordingly, prior to April 18, 2016, the criteria for an initial disability rating of 20 percent for the left/non-dominant upper extremity radiculopathy are met.  The 20 percent rating is warranted for the full period on appeal prior to April 18, 2016 (from August 12, 2008).

Nevertheless, prior to April 18, 2016, a disability rating in excess of 20 percent for the for the service-connected left/non-dominant upper extremity radiculopathy is not warranted.  In this regard, the evidence shows that the Veteran experienced intermittent numbness limited to the fourth and fifth digits of his left hand and intermittent evidence of hypoactive DTRs in the triceps, biceps, and brachioradialis.  There is no evidence of pain, muscle weakness or atrophy, or trophic changes.  As such, prior to April 18, 2016, the criteria for a disability rating in excess of 20 percent for the left/non-dominant upper extremity radiculopathy have not been met.

Regarding the period from April 18, 2016, a disability rating in excess of 30 percent for the service-connected connected left/non-dominant upper extremity radiculopathy is not warranted.  Specifically, there is no evidence of severe incomplete paralysis of the non-dominant extremity.  Although DTRs, sensitivity, and muscle strength in the upper extremities were recorded as reduced during the April 2016 examination, they were described as normal during the September 2018 examination.  Furthermore, neither the April 2016 nor September 2018 examiners concluded that the upper extremity radiculopathy resulted in severe incomplete paralysis.  There was also no evidence of trophic changes.  Accordingly, from April 18, 2016, the criteria for a disability rating in excess of 30 percent for the left/non-dominant upper extremity radiculopathy have not been met.

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.