Citation Nr: 21001501 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-46 484 DATE: January 8, 2021 ORDER An increased disability rating in excess of 40 percent for thoracic spine strain with intervertebral disc syndrome (IVDS) is denied. An initial disability rating in excess of 30 percent for cervical degenerative joint disease with IVDS is denied. An initial disability rating in excess of 20 percent for cervical radiculopathy, right upper extremity, associated with cervical degenerative joint disease with IVDS is denied. An initial disability rating in excess of 20 percent for cervical radiculopathy, left upper extremity, associated with cervical degenerative joint disease with IVDS is denied. REMANDED Entitlement to an effective date earlier than September 3, 2014, for the assignment of a disability rating of 40 percent for thoracic spine strain with IVDS is remanded. Entitlement to service connection for bilateral wrist disability, to include carpal tunnel syndrome or wrist strain, is remanded. FINDINGS OF FACT 1. The Veteran’s thoracic spine strain with IVDS was not manifested as unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 2. The Veteran’s cervical degenerative joint disease with IVDS was not manifested as unfavorable ankylosis of the entire cervical spine or incapacitating episodes. 3. The Veteran’s right upper extremity radiculopathy was not manifested by moderate incomplete paralysis of the upper radicular group (fifth and sixth cervicals). 4. The Veteran’s left upper extremity radiculopathy was not manifested by moderate incomplete paralysis of the upper radicular group (fifth and sixth cervicals). CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for thoracic spine strain with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5243. 2. The criteria for an initial disability rating in excess of 30 percent for cervical degenerative joint disease with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial disability rating in excess of 20 percent for cervical radiculopathy, right upper extremity, associated with cervical degenerative joint disease with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 4. The criteria for an initial disability rating in excess of 20 percent for cervical radiculopathy, left upper extremity, associated with cervical degenerative joint disease with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to November 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015, May 2015, and July 2015 rating decisions. In March 2019, the Veteran testified at a Travel Board hearing before the undersigned, and a transcript is of record. In June 2019, the Board remanded these issues for further development, and the case has been returned for appellate consideration. When a claim is made, the Veteran is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, the Veteran has several diagnoses pertaining to her wrists such that the Board has recharacterized her claim for serviced connection for carpal tunnel syndrome as stated above. Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran’s symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 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.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Concerning the range of motion findings of the joint at issue here, the Board notes that not all the VA examination reports include passive range of motion or specify range of motion with and without weight-bearing. The fundamental issue for Correia is that VA examiners perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. For those examinations of record where range of motion testing was performed only on weight bearing, there is no prejudice to the Veteran in relying on them because such results tend to produce the “worst case scenario” of impairment and thus would tend to support the highest possible rating. 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. Read together, 38 C.F.R. § 4.71a, Diagnostic Code 5003, and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by X-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Court has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). VA has a “well-established duty to maximize a claimant’s benefits.” Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) (addressing entitlement to special monthly compensation); see also 38 C.F.R. § 3.103(a); AB v. Brown, 6 Vet. App. 35, 38 (1993) (requiring consideration of all disability rating criteria above the currently assigned rating). Additional separate disability ratings may be assigned, however, only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. § 4.14 (avoidance of pyramiding); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. From the outset, the Board notes that the Veteran, while entirely competent to report her symptoms, is not competent to proffer an opinion as to diagnosis, etiology, or whether her symptoms warrant a specific rating under the schedule for rating disabilities. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specific medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). 1. Entitlement to an increased disability rating in excess of 40 percent for thoracic spine strain with IVDS. The Veteran essentially contends that her thoracic spine strain with IVDS is more disabling than contemplated by the currently assigned disability rating. On her May 2015 notice of disagreement, she indicated that she seeks an evaluation of 50 percent disabling. On a separate May 2015 notice of disagreement, she stated that she had constant back pain such that it was hard to stay sitting or sleeping because her upper and lower back were always tight. She stated that sometimes, when walking, she got a sharp pinch that stopped her in her tracks. She stated that the pain radiated down her arms, shoulder, and back. Her thoracic spine disability is currently evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The question for the Board, therefore, is whether the Veteran’s disability picture more nearly approximated the criteria for a higher evaluation. The Board concludes that the preponderance of the evidence is against a disability rating in excess of 40 percent because her thoracic spine strain with IVDS was not manifested as unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Additionally, if there is evidence of intervertebral disc syndrome (IVDS), Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 6; Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Here, in April 2015, the Veteran was afforded a VA examination for back (thoracolumbar spine) conditions, during which a 2002 diagnosis of thoracic spine sprain/strain with IVDS was noted. She reported that the condition began when her back started aching after physical training, and it had worsened over the years. She reported that she had been told that she had degenerative disc disease. She reported flare-ups of pain that impacted her ability to sit, bend, or walk for long periods. Initial range of motion testing revealed forward flexion of 40 degrees with painful motion beginning at 25 degrees; extension of 20 degrees with pain beginning at 20 degrees; right and left lateral flexion of 20 degrees with pain at 20 degrees; right and left lateral rotation of 30 degrees with pain at 30 degrees. After repetitive use testing, the same results were obtained. It was indicated that the Veteran’s functional loss included weakened movement; excess fatiguability; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; interference with sitting, standing, and/or weight-bearing. The examiner noted that there was tenderness to palpation at T4-T8 and L2-L5. It was indicated that there was guarding and/or muscle spasm that did not result in abnormal gait or spinal contour. It was indicated that muscle strength, deep tendon reflexes, and sensory perception were all normal. There was no muscle atrophy. Straight leg raising tests were negative. There was bilateral lower extremity mild paresthesias and/or dysesthesias and mild numbness. It was indicated that the Veteran had IVDS and that she had not had any incapacitating episodes over the past 12 months due to IVDS. X-rays taken of the thoracic and lumbar spines were read as normal; the examiner indicated that arthritis was not documented by imaging. Functional limitations at work were noted as lifting boxes and having to sit at a desk for long periods. The examiner stated that the Veteran’s posture and gait were within normal limits. The examiner opined that, during repeated use over time and during flare-ups, the Veteran experienced an additional 10 degrees loss of range of motion in all directions. During her March 2019 hearing, the Veteran stated that when bending over she experienced cramps such that it was hard for her to straighten up. She stated that she did not receive treatment but took Motrin or Aleve, however, she had previously been prescribed Flexeril and tramadol. She stated that she was provided with a heating pad. She stated that she believed she had been told that she had degenerative disc disease but she denied being told that she had ankylosis. She stated that after her 45-minute drive to work it was “like everything is locked.” She stated that she normally would apply pressure to a spot that was spasming. In January 2020, the Veteran was afforded a new VA examination for back conditions, during which she reported pain, soreness, stiffness, and spasms. She reported using Tylenol once or twice a month and Aleve once or twice a month and a heating pad when needed. She denied flare-ups. She reported having difficulty walking, standing, or sitting for prolonged periods. Initial range of motion testing revealed forward flexion of 90 degrees; extension of 20 degrees; right lateral flexion of 30 degrees; left lateral flexion of 25 degrees; and right and left lateral rotation of 30 degrees. It was indicated that pain was noted on examination and caused functional loss on forward flexion, extension, and left lateral flexion. It was indicated that there was evidence of pain on weight-bearing and mild tenderness on palpation. It was indicated that there was no additional functional loss after repetitive use testing. The examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time. It was estimated that the effect of pain would manifest with repeated use over time as forward flexion of 85 degrees; extension of 20 degrees; right lateral flexion of 25 degrees; left lateral flexion of 20 degrees; and right and left lateral rotation of 30 degrees. As the Veteran denied having flare-ups, it was indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. It was noted that there were muscle spasms not resulting in abnormal gait or abnormal spinal contour. Muscle strength and sensory examination were normal, and there was no muscle atrophy. Testing of deep tendon reflexes revealed hypoactivity at the bilateral knees and ankles. Straight leg rating tests were negative, and it was indicated that there was mild bilateral radiculopathy. It was indicated that there was not ankylosis of the spine. It was indicated that the Veteran had IVDS and that she had not had any incapacitating episodes over the past 12 months due to IVDS. It was noted that X-rays taken during the examination did not reveal degenerative changes. Based upon a careful review of the foregoing, the Board finds that a disability rating in excess of 40 percent for thoracic spine strain with IVDS is not warranted because the preponderance of the evidence is against finding that there was unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. Indeed, the January 2020 VA examiner indicated the lack of ankylosis. Although the Veteran demonstrated improved range of motion during the January 2020 examination, sustained improvement has not been definitively established such that the Board focuses on the functional loss demonstrated during the April 2015 examination. The Veteran’s thoracic spine disability manifested as painful motion with reduced range of motion as well as muscle spasm and localized tenderness not resulting in abnormal gait or abnormal spinal contour. Initial range of motion testing revealed forward flexion of 40 degrees, and it was estimated that during repeated use over time there would be a reduction of 10 degrees. The corresponding estimated forward flexion of the thoracolumbar spine 30 degrees or less comports with a disability rating of 40 percent. In addition to the schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The probative evidence, both medical and lay, establishes that the Veteran has experienced pain with movement in all directions of range of motion. Indeed, the April 2015 examiner noted objective evidence of painful motion at 25 degrees of forward flexion. Considering the effect of pain during repeated use over time, the Board notes it was estimated that painful motion would result in forward flexion of 15 degrees. The Board notes the Veteran’s statements during her hearing about feeling as if her back is locked or frozen after driving or bending over. These instances, however, are transient, and there is no evidence to support that the episodes approximate the severity of disability associated with ankylosis as enumerated in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Consequently, even considering DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.49, ankylosis was not nearly approximated. Also, although there is evidence of IVDS, there is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months to warrant a higher disability rating under the criteria for IVDS. The Veteran has not contended otherwise. The Board notes that in the May 2015 rating decision on appeal the Veteran was service-connected for right and left lower extremity radiculopathy, evaluated as 10 percent disabling as to each side, effective September 3, 2014. She did not appeal either the evaluation or the effective date. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Entitlement to an initial disability rating in excess of 30 percent for cervical degenerative joint disease with IVDS. The Veteran essentially contends that her cervical degenerative joint disease with IVDS is more disabling than contemplated by the currently assigned disability rating. On her May 2015 notice of disagreement, she indicated that she seeks an evaluation of 50 percent disabling. Her cervical spine disability is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The question for the Board, therefore, is whether the Veteran’s disability picture more nearly approximated the criteria for a higher evaluation. The Board concludes that the preponderance of the evidence is against an initial disability rating in excess of 30 percent for her cervical degenerative joint disease with IVDS because her cervical spine disability was not manifested as unfavorable ankylosis of the entire cervical spine or incapacitating episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, ratings for the cervical spine are assigned as follows: A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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, and the corresponding Diagnostic Codes 5235-5243 are identified. Id. at Note 6.1a, Diagnostic Codes. The rule pertaining to evaluating IVDS is stated above. In February 2015, the Veteran was afforded a VA examination for neck (cervical spine) conditions, during which a diagnosis of cervical degenerative joint disease was recorded. The Veteran reported being in constant neck pain with intermittent worsening and, during flare-ups, it was hard to turn her head from side to side. Initial range of motion testing revealed forward flexion of 20 degrees with pain; extension of 20 degrees with pain; right and left lateral flexion of 20 degrees with pain; and right and left lateral rotation of 20 degrees with pain. After repetitive use testing, there was forward flexion of 10 degrees; extension of 10 degrees; right and left lateral flexion of 10 degrees; and right and left lateral rotation of 20 degrees. It was indicated that functional loss manifested as less movement than normal and pain on movement. It was indicated that there was moderate tenderness to palpation of the cervical paraspinals. It was indicated that there was guarding or muscle spasm present that did not result in abnormal gait or spinal contour. Muscle strength and sensory testing was all normal and there was no muscle atrophy. Deep tendon reflexes were hypoactive at all points bilaterally. It was indicated that the Veteran had IVDS of the neck and had not had any incapacitating episodes over the past 12 months. It was indicated that arthritis was documented on imaging. It was stated that the Veteran’s posture and gait were within normal limits. It was stated that there were contributing factors of pain, weakness, fatiguability, and/or incoordination and there was additional limitation of functional ability of the cervical spine during flare-ups or repeated use over time. It was estimated that during those times the Veteran would have 10 degrees of flexion, 10 degrees of extension, and 10 degrees of right and left lateral flexion. During the Veteran’s March 2019 hearing, she stated that due to her neck hurting she would get headaches. She denied being told that she had ankylosis. She stated that her neck condition started as muscle spasm then she was told that she had arthritis in her neck. She stated that her neck ached with changes in weather. She stated that when holding a position, such as when using a computer, her neck would freeze up. She stated that some days it was hard to look left or right. She stated that to relieve the pain, she used either a heating pad or heat pack. She endorsed that she was not receiving treatment for the condition. In January 2020, the Veteran was afforded a new VA examination for neck conditions, during which she reported pain, soreness, popping, stiffness, and having pain when moving to certain positions. She reported that she took Aleve or Tylenol for pain once or twice per month for each as needed. She denied flare-ups. Initial range of motion testing revealed forward flexion of 25 degrees, extension of 45 degrees, right and left lateral flexion of 35 degrees, and right and left lateral rotation of 50 degrees. It was noted that she had difficulty bending and turning her head due to pain. It was noted that there was objective evidence of pain with movement in all directions tested. It was noted that the Veteran was mildly tender to palpation in the trapezius areas. It was indicated that repetitive use testing did not result in additional loss of range of motion and that the examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time. It was estimated that with repeated use over time the Veteran’s forward flexion would be to 20 degrees, extension to 40 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 45 degrees. As to flare-ups, it was indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements as she denied having flare-ups. It was indicated that she had muscle spasm that did not result in abnormal gait or abnormal spinal contour. Muscle strength and sensory testing were all normal, and there was no muscle atrophy or ankylosis. Deep tendon reflexes were hypoactive at all points tested. It was indicated that the Veteran had IVDS and that she denied having any incapacitating episodes during the past 12 months. Based upon a careful review of the foregoing, the Board finds that an initial disability rating in excess of 30 percent for cervical degenerative joint disease with IVDS is not warranted because the preponderance of the evidence is against finding that there was unfavorable ankylosis of the entire cervical spine or incapacitating episodes. Indeed, the January 2020 VA examiner indicated the lack of ankylosis. The Veteran’s cervical spine disability manifested as painful motion with reduced range of motion as well as muscle spasm and localized tenderness not resulting in abnormal gait or abnormal spine contour. Initial range of motion testing during the VA examinations revealed forward flexion of 20 degrees with pain in February 2015 and 25 degrees in January 2020, which squarely corresponds to an evaluation of 20 percent disabling. In addition to the schedular criteria, the Board has considered functional loss due to flare-ups of pain, weakness, fatiguability, incoordination, pain on movement, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The preponderance of the evidence, both medical and lay, establishes that the Veteran has experienced pain with movement in all directions of range of motion of the neck. Indeed, both VA examiners noted objective evidence of pain during range of motion testing. Considering the effect of pain during repeated use over time, the February 2015 examiner estimated that painful motion would result in forward flexion of 10 degrees and the January 2020 estimated flexion to 20 degrees. Consequently, the Board finds that the Veteran was so limited by the factors noted in DeLuca and 38 C.F.R. § 4.40, 4.45, and 4.49 as to constitute forward flexion of the cervical spine 15 degrees or less thereby supporting an evaluation of 30 percent. The preponderance of the evidence, however, is against finding that the Veteran’s limitation of motion of the neck more nearly approximated ankylosis. The Board notes the Veteran’s statements about her neck locking or freezing after holding her head in a particular position for a period of time, such as when using a computer. These instances, however, are transient, and there is no evidence to support that the episodes approximate the severity of disability associated with ankylosis as enumerated in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Consequently, even considering DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.49, ankylosis was not nearly approximated. Also, although there is evidence of IVDS, there is no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months to warrant a higher disability rating under the criteria for IVDS. The Veteran does not contend otherwise. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Entitlement to an initial disability rating in excess of 20 percent for cervical radiculopathy, right upper extremity, associated with cervical degenerative joint disease with IVDS. 4. Entitlement to an initial disability rating in excess of 20 percent for cervical radiculopathy, left upper extremity, associated with cervical degenerative joint disease with IVDS. The Veteran essentially contends that her right and left upper extremity radiculopathy associated with her service-connected cervical degenerative joint disease with IVDS is more disabling than contemplated by the currently assigned disability ratings. On her May 2015 notice of disagreement, she indicated that she seeks an evaluation of 30 percent disabling for each arm. She stated that the pain from her neck/back radiated down her arms and she had numbness and tingling in her hands, which woke her up. The Veteran’s radiculopathy is currently evaluated as 20 percent disabling for each arm under 38 C.F.R. § 4.71a, Diagnostic Code 8510. The question for the Board, therefore, is whether the Veteran’s disability picture for each arm more nearly approximated the criteria for a higher evaluation. The Board concludes that the preponderance of the evidence is against an initial disability rating in excess of 20 percent for each arm because her radiculopathy was not manifested as moderate incomplete paralysis of the upper radicular group (fifth and sixth cervicals). VA regulations indicate that handedness will be determined by the evidence of record. 38 C.F.R. § 4.69. Here, during a January 2020 VA examination for peripheral nerve conditions, it was indicated that the Veteran’s dominate hand was her right. Accordingly, the right arm radiculopathy will be evaluated under the rating criteria for the major body part while the left arm radiculopathy will be evaluated under the rating criteria for the minor body part. The words slight, moderate, severe, and similar terms as used in the various diagnostic codes are not defined in the VA Schedule of Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension.” See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree.” See www.merriam-webster.com/dictionary/severe. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under 38 C.F.R. § 4.124a, Diagnostic Code 8510, pertaining to paralysis of upper radicular group (fifth and sixth cervical), for the major side, disability evaluations of 20, 40, and 50 percent are assignable for incomplete paralysis of the upper radicular group that is mild, moderate, or severe, respectively. A schedular maximum evaluation of 70 percent is warranted for complete paralysis of the upper radicular group. 38 C.F.R. § 4.124a, Diagnostic Code 8510. For the minor side, disability evaluations of 20, 30, and 40 percent are assignable for incomplete paralysis of the upper radicular group that is mild, moderate, or severe, respectively. A schedular maximum evaluation of 60 percent is warranted for complete paralysis of the upper radicular group. Id. An accompanying note to the schedule of ratings for diseases of the peripheral nerves directs that 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In February 2015, the Veteran was afforded a VA examination for neck conditions, during which it was indicated that she experienced signs and symptoms of upper extremity radiculopathy. It was indicated that the C5/C6 nerve roots (upper radicular group) were involved. As to the right arm, it was indicated that there was moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner indicated that the severity of the right arm symptoms was moderate. As to the left arm, it was indicated that there was mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner indicated that the severity of the left arm symptoms was mild. VA medical records show that in March 2015 the Veteran complained of numbness and tingling in the fingers of the right hand in relationship to right elbow pain, and a wrist splint had been ordered. (The Board notes that the Veteran is service-connected for right elbow lateral epicondylitis.) During the Veteran’s March 2019 hearing, she stated that she could not lift her left arm then without the assistance of her right arm because she had a “cramp or muscle tightness” on the left side that had started during the night before. She stated she had a “tingle numbness” in her hand and that it felt cold. She stated that the right side would do the same thing. She stated that her fingers and hands were constantly falling asleep, even while she was asleep. She explained that the pain started in her back in the shoulder blade area and radiated downwards to her hands. She stated that due to severity of pain she would have to raise an arm with the opposing arm due to lack of strength in the affected arm. In grocery store terms, she stated that she would not be able to lift a gallon of milk when her arms were in such condition. She stated that at times a cup would slip straight through her hand. She explained that, due to loss of grip and strength, she would need pliers to open a gallon of milk. She stated that initially she had done both occupational and physical therapy and then was given an at home exercise program. She stated that she wore wrist braces at night and sleeping on her side caused her hands to go numb, which would wake her. In January 2020, the Veteran was afforded a VA examination for peripheral nerve conditions, during which she reported pain, numbness, and tingling in the arms. She reported that pain radiated from her arms to her fingers and that she had difficulty lifting or carrying heavy or large objects due to weakness. Her reported treatment was the same as for her back and neck disabilities. As to both the right and left arms, it was indicated that there was mild intermittent pain, paresthesias and/or dysesthesias, and numbness. There was also mild incomplete paralysis of the right and left upper radicular group. (It was indicated that there was mild incomplete paralysis of both the right and left median nerves, which the Board notes pertained to the Veteran’s claim for service connection for bilateral wrist disabilities.) The examiner stated that the Veteran’s service-connected right shoulder arthritis and right elbow lateral epicondylitis would elicit numbness and tingling symptoms, which would overlap, and there would be an inability to distinguish one condition from the other. It was stated that, at work, there would be reduced productivity with prolonged activity, and the Veteran reported missing zero to one week of work in the last 12 months due to her condition. As stated above, it was found during a January 2020 VA examination for neck conditions that the Veteran’s deep tendon reflexes of the upper extremities were hypoactive at all points tested. Based upon careful consideration of the foregoing, the Board concludes that the preponderance of the evidence is against an initial disability rating in excess of 20 percent for each arm for the Veteran’s right and left upper extremity cervical radiculopathy associated with cervical degenerative joint disease and IVDS because, as to either arm, it did not manifest as moderate incomplete paralysis of the upper radicular group. The Veteran reported intermittent episodes of pain, numbness, tingling, and weakness in her arms depending upon the severity of her neck and back disabilities at a given time. At times, she could not hold a glass or pick up a gallon of milk. The Board notes that the Veteran did not report having lost any particular amount of time from work due to episodic symptomatology of her hands, rather it was recorded on all her examination reports that she had missed zero to one week of work due to her disabilities. Consequently, the Board finds that the Veteran’s right and left upper extremity radiculopathy manifested as mild incomplete paralysis of the upper radicular group, and an initial disability rating in excess of 20 percent for each arm is not warranted. Based upon the foregoing, as the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply, and the claims must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND 1. Entitlement to an effective date earlier than September 3, 2014, for the assignment of a disability rating of 40 percent for thoracic spine strain with IVDS is remanded. In the May 2015 rating decision on appeal, the Regional Office (RO) assigned a disability rating of 40 percent for the Veteran’s thoracic spine strain with IVDS effective September 3, 2014. In her May 2015 notice of disagreement, the Veteran appealed the assigned effective date and made reference to having reported thoracic spine strain in August 2012 as a back condition. The RO has not issued a statement of the case as to this issue in response. Thus, the Board is required to remand the matter for issuance of a statement of the case addressing the claim. 38 C.F.R. § 19.9; see also Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for bilateral wrist disability, to include carpal tunnel syndrome or wrist strain, is remanded. The Veteran seeks service connection for bilateral wrist disability, notably for carpal tunnel syndrome as well as wrist strain. In January 2020, the Veteran was afforded a VA examination for wrist conditions, during which a current diagnosis of bilateral wrist strain was assigned and a 2016 diagnosis of bilateral carpal tunnel syndrome was noted. In a separate medical opinion, the examiner opined that it was less likely than not that the Veteran’s current wrist disability was incurred in or caused by military service. The examiner noted the in-service history of right upper extremity numbness and tingling related to cervical degenerative joint disease, right elbow lateral epicondylitis, and right shoulder degenerative joint disease. It was noted that there was no medical record of in-service left upper extremity issues and that the Veteran was not diagnosed with carpal tunnel syndrome until 2016, after separation from service. The examiner stated that the “neuropathy symptoms she reported to right arm/wrist were associated with [her] cervical DJD and right shoulder surgery which lead to her report right forearm/elbow and wrist pain and not associated with carpal tunnel during service.” It was explained that the carpal tunnel identified after service was a comorbidity existing with her cervical radiculopathy due to degenerative joint disease. It was noted that “both have overlapping symptoms but during service, the neuropathy symptoms were reported mainly to right and not left upper extremity.” It was stated that the wrist strain diagnosed during the examination was “separate and unrelated to service and more likely due to normal aging, wear and tear.” The Board finds that a remand is required for further development of this issue. On the Veteran’s May 2015 notice of disagreement, she stated that her right elbow lateral epicondylitis had gotten worse in that she now had carpal tunnel syndrome. In an April 2020 informal hearing brief, the Veteran’s representative drew attention to the VA examiner basing the negative nexus opinion for direct causation solely upon the lack of manifestation during service. The representative pointed out that a medical opinion was not proffered as to whether the Veteran’s wrist disability arose secondary to her several related service-connected disabilities. The Board notes that the Veteran’s service-connected disabilities include cervical degenerative joint disease with intervertebral disc syndrome; cervical radiculopathy right upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome; cervical radiculopathy left upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome; right shoulder degenerative arthritis, status post surgical repair; and right elbow lateral epicondylitis. This theory of entitlement has not been addressed by a VA examiner, and therefore, an additional VA medical opinion is necessary to determine the etiology of the Veteran’s bilateral wrist disability. See 38 C.F.R. §§ 3.159(c), 3.310; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These matters are REMANDED for the following actions: 1. Issue a statement of the case with respect to entitlement to an effective date earlier than September 3, 2014, for the assignment of a disability rating of 40 percent for thoracic spine strain with IVDS. The Veteran should be advised that a timely substantive appeal must be filed in order to perfect the appeal as to this matter. 38 C.F.R. § 19.52. The issue is to be returned to the Board only if it is perfected by a timely substantive appeal in the legacy system. 2. Arrange for an addendum VA medical opinion from the January 2020 VA examiner for wrist conditions, if available, or another equally qualified examiner to determine the nature and etiology of the Veteran’s bilateral wrist disability, particularly carpal tunnel syndrome or wrist strain. The examiner asked to offer the opinion should thoroughly review the Veteran’s electronic claims file and a complete copy of this Remand in conjunction with offering any opinion and note this has been accomplished in the VA examination report. The Board leaves it to the clinician’s discretion whether the Veteran should be re-examined. The examiner is advised that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to address the following: (a) For each diagnosis related to the Veteran’s symptoms of right wrist disability, including carpal tunnel syndrome or wrist strain, is it at least as likely as not (a 50 percent probability or more) proximately due to any of the Veteran’s service-connected disabilities, to include cervical degenerative joint disease with intervertebral disc syndrome; cervical radiculopathy right upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome; right shoulder degenerative arthritis, status post surgical repair; or right elbow lateral epicondylitis. (b) For each diagnosis related to the Veteran’s symptoms of right wrist disability, is it at least as likely as not (a 50 percent probability or more) aggravated by any of the Veteran’s service-connected disabilities, to include cervical degenerative joint disease with intervertebral disc syndrome; cervical radiculopathy right upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome; right shoulder degenerative arthritis, status post surgical repair; or right elbow lateral epicondylitis. (c) For each diagnosis related to the Veteran’s symptoms of left wrist disability, including carpal tunnel syndrome or wrist strain, is it at least as likely as not (a 50 percent probability or more) proximately due to any of the Veteran’s service-connected disabilities, to include cervical degenerative joint disease with intervertebral disc syndrome or cervical radiculopathy left upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome. (d) For each diagnosis related to the Veteran’s symptoms of left wrist disability, including carpal tunnel syndrome or wrist strain, is it at least as likely as not (a 50 percent probability or more) aggravated by any of the Veteran’s service-connected disabilities, to include cervical degenerative joint disease with intervertebral disc syndrome or cervical radiculopathy left upper extremity associated with cervical degenerative joint disease with intervertebral disc syndrome. The VA examiner must provide separate findings and rationales relating to causation and aggravation. It is also noted that aggravation need not be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner is reminded that lack of contemporaneous service treatment records documenting complaints during active service, alone, is an insufficient rationale for a negative opinion. The examiner must reconcile any opinion with the evidence of record, citing to the record as appropriate. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on the next page)   3. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.