Citation Nr: 21067143 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-49 837 DATE: November 3, 2021 ORDER Entitlement to an increased 30 percent for degenerative joint disease (DJD) of the cervical spine prior to August 23, 2019, is granted. Entitlement to increased rating in excess of 30 percent for DJD of the cervical spine, since August 23, 2019, is denied. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy, prior to August 23, 2019, is denied. Entitlement to an increased initial rating of 30 percent for left upper extremity radiculopathy, since August 23, 2019, is granted. Entitlement to an earlier effective date prior to May 28, 2015, for the grant of service connection for left upper extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to August 23, 2019, the Veteran's neck disability was productive of cervical spine motion limited to a combined 165 degrees. 2. Since August 23, 2019, the Veteran's degenerative joint disease of the cervical spine has been characterized by forward flexion of the cervical spine to 5 degrees; at no point has this disability been characterized by unfavorable ankylosis of the entire cervical spine, or incapacitating episodes. 3. The Veteran is right hand dominant. 4. Prior to August 23, 2019, left upper extremity radiculopathy is no worse than mild in nature. 5. Since August 23, 2019, left upper extremity radiculopathy is no worse than moderate in nature. 6. The VA received the Veteran's claim for service connection for left upper extremity radiculopathy on May 28, 2015, more than one year after his discharge from active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 30 percent, but no higher, for DJD of the cervical spine have been met prior to August 23, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for entitlement to an increased rating in excess of 30 percent for DJD of the cervical spine have not been met since August 23, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for entitlement to an initial rating in excess of 20 percent for left upper extremity (LUE) radiculopathy, prior to August 23, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8510. 4. The criteria for an initial, increased rating of 30 percent, but no higher, for LUE radiculopathy since August 23, 2109, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8510. 5. The criteria for entitlement to an earlier effective date prior to May 28, 2015, for the grant of service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the United States Air Force from January 1981 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veteran Affairs (VA) agency of original jurisdiction (AOJ). This case was previously before the Board in July 2019, at which time the issues currently on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. In an April 2020 rating decision, a 30 percent rating was assigned for the Veteran's cervical spine disability, effective August 23, 2019. This did not constitute a complete grant of the benefits sought on appeal, and so both stages remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Cervical Spine (Neck) The Veteran asserts that he should have higher ratings for his cervical spine disability as his symptoms are worse than those contemplated by the currently assigned ratings. DJD of the cervical spine is rated under Diagnostic Code 5242, which applies the General Rating Formula for Diseases and Injuries of the Spine. The disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires cervical spine forward flexion greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, Code 5242. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, normal extension is zero to 45 degrees, normal left and right lateral flexion is zero to 45 degrees, and normal left and right lateral rotation is zero to 80 degrees. 38 C.F.R. § 4.71a, Code 5242, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5242, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Code 5242, Note 5. The Board notes that the criteria for evaluation of musculoskeletal conditions under 38 C.F.R. § 4.71a were amended effective February 7, 2021. Claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). However, the general rating criteria for diseases and injuries of the spine are substantively unchanged under the new rating criteria. At an August 2015 VA examination, the Veteran reported that his neck disability has gotten worse, especially when turning his head to the left or tilting his head backwards and he admitted flare-ups. The flare-ups were described as neck pains shooting down the left upper extremity on rotating the head to the left; no impact on flexion or extension was noted. Upon physical examination, cervical spine range of motion measurements were as follows: flexion to 45 degrees, extension to 45 degrees with pain, right lateral flexion to 45 degrees, left lateral flexion to 35 degrees with pain, and right and left lateral rotation to 40 degrees each. The Veteran was able to perform repetitive testing and there was no additional limitation of motion following repetition. Cervical spine functional impairment was noted to consist of less movement than normal and pain on movement. There was no tenderness to palpation of the neck, and there was no guarding or muscle spasm present or muscle atrophy. Muscle strength testing, deep tendon reflex examination, and sensory examination were all normal. The Veteran does have cervical radicular pain. He had mild LUE intermittent pain, mild LUE paresthesias/dysesthesias, and moderate LUE numbness. The examiner indicated mild radiculopathy. The Veteran did not have intervertebral disc syndrome. The examiner diagnosed with degenerative joint disease and found that the disability does impact the Veteran's ability to work. The examiner indicated there were contributing factors of pain, weakness, fatigability, and/or incoordination but no additional limitation of functional ability of the cervical spine during flare-ups or repeated use over time. The examiner presented a positive service connection medical opinion. At an August 2019 VA examination, the Veteran reported that his neck pain had gotten progressively worse. He reported that he experienced constant pain daily. He rated the pain in his neck as 7/10. The Veteran complained of radiating pain from the neck going to his left arm and hand/fingers. The Veteran reported flare-ups of his neck daily that affects his day-to-day activities and disrupts his sleep at night. He reported that his neck disability caused functional impairment, in that he could not lift things or drive for long periods of time. Upon physical examination, cervical spine range of motion measurements were as follows: flexion to 20 degrees, extension to 25 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 15 degrees each. The examiner noted that the Veteran had limitations with movement of his neck and the ability to lift heavy weights. The examiner noted that there was pain on examination on all cervical spine range of motion exercises. There was evidence of tenderness to palpation of the neck. There was evidence of pain on weight bearing and non-weight bearing. Passive range of motion measurements were the same as active range of motion. The Veteran was not able to perform repetitive testing due to severe pain. The examiner noted that the Veteran would experience additional limitation of function because of pain following repeated use over a period of time and during flare-ups. The examiner estimated the cervical spine range of motion measurements following repeated use over a period of time to be as follows: flexion to 15 degrees, extension to 15 degrees, right lateral flexion to 5 degrees, left lateral flexion to 0 degrees and right and left lateral rotation to 0 degrees each. The estimated cervical spine range of motion measurements during flare-ups revealed forward flexion to 5 degrees, extension to 10 degrees, right lateral flexion to 5 degrees, left lateral flexion to 0 degrees, and right and left lateral rotation to 0 degrees each. There was guarding but no muscle spasms found on examination. However, the guarding did not result in abnormal gait or abnormal spinal contour. The examiner noted there were no additional factors contributing to the Veteran's cervical disability. Muscle strength testing was normal. There was no muscle atrophy. The Veteran's deep tendon reflexes examination and sensory examination were normal. The Veteran does have cervical radicular pain. The Veteran had moderate LUE constant pain, moderate LUE paresthesias/dysesthesias, and severe LUE numbness. There were positive Spurling test on both sides. The examiner noted that his cervical radicular pain involves the C5/C6 nerve roots. The examiner indicated that the Veteran had mild radiculopathy. There was no cervical spine ankylosis. The examiner noted that the Veteran did not have intervertebral disc syndrome. The Veteran uses a cane to compensate for DJD associated with his neck pain. Arthritis is documented. The examiner found that the Veteran's neck disability impacted his ability to work. The neck disability limits the Veteran's ability to do repetitive movements and lift heavy weight. The examiner did state that the bilateral positive Spurling test is an indication his bilateral radiculopathy is a progression of DJD due to nerve impingement. A review of the treatment notes of records prior to August 23, 2019, does not show the Veteran to have symptoms of his neck disability that are worse than those reported on his August 2015 VA examination. However, the August 2015 examiner failed to include range of motion measurements relating to additional functional impairment following repeated use over a period of time and during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, there is no indication from the record that the Veteran had cervical spine flexion limited to 30 degrees or less. Resolving all doubt in the Veteran's favor, however, his cervical spine combined range of motion was limited to less than 170 degrees. His combined cervical spine range of motion was limited to, at worst, 250 degrees by reported measurement. Taking away all extension (45 degrees) and left side rotation (an additional lost 40 degrees), reported to be the main manifestations of impairment during flare-up, results in a combined range of 165 degrees. This results in entitlement to an increased 30 percent rating for the cervical spine prior to August 23, 2019. Further, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his neck disability since August 23, 2019, or at any point prior. The VA examinations show that the Veteran does not have unfavorable ankylosis of the cervical spine nor does he have IVDS. There is no legal basis, even resolving all doubt in the Veteran's favor, for an award in excess of 30 percent at any point during the appellate period. Regarding cervical radiculopathy, the Board notes that the Veteran is already in receipt of a separate rating for his left upper extremity, and that rating will be addressed before the Board. As such, the left upper extremity will be discussed below in a separate decision. With regard to the right upper extremity, there is no indication that the Veteran experiences symptoms in his right arm. He has not reported radiating pain or numbness in the right upper extremity, let alone of a sufficient severity to warrant a separate rating. As such, entitlement to a separate rating for right upper extremity radiculopathy warranted. 38 C.F.R.§ 4.124a, Diagnostic Codes 8510-8519 (2020). LUE Radiculopathy The Veteran asserts that he should have higher initial rating for his LUE radiculopathy as his symptoms are worse than those contemplated by the currently assigned ratings. The upper radicular group affects all shoulder and elbow movements. See 38 C.F.R. § 4.124a, Diagnostic Code 8510. That code provides a minimum 20 percent evaluation when there is incomplete paralysis of the upper radicular group which is mild in degree, whether the major or the minor extremity. A 40 percent evaluation is assigned when there is incomplete paralysis of the major extremity which is moderate, while a 30 percent evaluation is assigned for incomplete paralysis of the minor extremity which is moderate in degree. A 50 percent disability rating is provided when there is incomplete paralysis of the major extremity which is severe in degree, while a 40 percent rating is assigned when there is incomplete paralysis of the minor extremity which is severe in degree. A maximum rating of 70 percent for the major extremity is provided when there is complete paralysis, with all shoulder and elbow movements lost or severely affected, while hand and wrist movements are not affected. The maximum rating for the minor extremity is 60 percent. 38 C.F.R. § 4.124a, Code 8510. VA examiners note the Veteran is right handed, and so the left upper extremity is the minor limb. At an August 2015 VA examination, the Veteran described cervical spine flare-ups as neck pains shooting down the left upper extremity upon rotating the head to the left. Upon physical examination, muscle strength testing, reflex examination, and sensory examination were normal. However, the examiner noted that the Veteran does have cervical radicular pain, based on mild LUE intermittent pain, mild LUE paresthesias/ dysesthesias, and LUE moderate numbness. The examiner indicated mild radiculopathy. At an August 2019 VA examination, the Veteran reported constant chronic neck pain on a daily basis. He also complained of radiating pain from the neck going to his left arm and hand/fingers. Further, the Veteran cannot tolerate lifting things and driving for long periods of time. The muscle strength examination, reflex examination and the sensory examination were normal. The Veteran does have cervical radicular pain, with moderate LUE constant pain, moderate LUE paresthesias/dysesthesias, and severe LUE numbness. There were positive Spurling test on both sides. The examiner noted that his cervical radicular pain involves the C5/C6 nerve roots. The examiner indicated that the Veteran had mild radiculopathy. Based on the evidence of record, the Board concludes that the Veteran does meet the criteria for a higher evaluation than 20 percent for the left upper extremity radiculopathy under Diagnostic Code 8510 prior to August 23, 2019. The August 2015 examiner indicated that the Veteran's radiculopathy was mild in nature, which is consistent with the reported symptoms of intermittent pain and paresthesias dysesthesias were reflected as mild along with moderate numbness. T In contrast, the August 2019 examiner noted that the Veteran has moderate LUE constant pain, moderate LUE paresthesias/dysesthesias, and severe LUE numbness. The subjective evidence reflects the reduction in that the Veteran was functionally unable to lift heavy objects and drive over long periods of time. Moreover, the positive Spurling test on the Veteran's left and right sides indicate a progression of DJD due to nerve impingement. While the examiner again characterized the radiculopathy as mild, given the clear increase in frequency and overall severity of the symptoms, the Board finds the disability is better reflected by a finding of moderate impairment. Such corresponds to a 30 percent rating for the minor, nondominant limb, effective from August 23, 2109, the date of examination first showing the worsening. Earlier Effective Date The Veteran contends that the effective date of the award of service connection for left upper extremity radiculopathy should be earlier than May 28, 2015, the date currently assigned. A September 2015 rating decision granted service connection for left upper extremity radiculopathy effective May 28, 2015. Generally, the effective date of service connection will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. If a claim is received within one year of separation, the effective date is the day following separation from service. 38 C.F.R. § 3.400(b)(2). For claims for increased rating, an award is effective the later of date entitlement arose or date of receipt of claim. If an increase in disability is shown within a year of receipt of the claim for increase, a retroactive award, effective the date of factual increase, may be assigned. 38 C.F.R. § 3.400(o). In this case the evidence shows that the Veteran initially filed a formal claim for increased rating of his service-connected "back" on May 28, 2015; the only spine condition for which benefits had been awarded at that time was the cervical spine disability. Because the rating criteria, discussed above, instructs that evaluation of the spine requires consideration of neurological manifestations, the filing is also considered a claim of service connection for the LUE radiculopathy. Because the AOJ has awarded the date of receipt of claim, May 28, 2015, as the effective date, the Veteran may succeed in his claim only by showing a prior, open claim for entitlement, or by showing factual increase effective May 28, 2014 or after. There is no correspondence or other communication of record prior to May 2015 which can be considered a claim for benefits. At the time of the claim of service connection for the cervical spine, there was no evidence of associated neurological symptoms. Hence, there is no available effective date based on receipt of a claim. With regard to a showing of increased symptoms within the year prior to May 28, 2015, ongoing treatment records show no LUE neurological symptoms. The Veteran affirmatively denied such; he complained of some right lower extremity pain only. In sum, the Veteran's claim for service connection for left upper extremity radiculopathy was received May 28, 2015. As this claim was received more than one year after separation from service, the earliest possible date for service connection for left upper extremity radiculopathy is May 28, 2015. Even if considered a claim for increase, no factual entitlement to increase is shown within a year prior to the claim. Notably, neither the Veteran nor his representative has made a specific argument as to why an earlier effective date is warranted. 38 U.S.C. § 5110; 38 C.F.R.§ 3.400(b)(2)(i). Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than May 28, 2015 for the award of benefits for left upper extremity radiculopathy; there is no doubt to be resolved; and an earlier effective date is not warranted. 38 U.S.C. § 5107(b). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.