Citation Nr: 21067438 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-49 926A DATE: November 4, 2021 ORDER The appeal of entitlement to service connection for sleep apnea has been withdrawn. Entitlement to an initial rating of 20 percent, but no higher, until September 28, 2020, for the cervical spine disability is granted. Entitlement to a rating higher than 30 percent from September 28, 2020, for the cervical spine disability is denied. Entitlement to an initial rating higher than 20 percent, to a rating higher than 40 percent from February 16, 2017, until September 28, 2020, or to a rating higher than 50 percent from September 28, 2020, for radiculopathy of the right upper extremity is denied. REMANDED Entitlement to a higher initial rating for depression is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. The Veteran knowingly and intentionally withdrew his appeal for service connection for sleep apnea at the April 2021 Board hearing. 2. From the effective date of June 29, 2016, until September 28, 2020, the evidence, resolving any reasonable doubt in the Veteran's favor, reflects that the Veteran's cervical spine disability manifested in symptoms including flare-ups severely limiting motion, interference with sitting, and an inability to run, jump, or bear weight, which combined are sufficient to show a disability picture of the cervical spine disability more nearly approximating a severity akin to 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. 3. From the effective date of June 29, 2016, until September 28, 2020, the evidence is insufficient to establish that the cervical spine disability manifested in symptoms more nearly approximating a severity akin to forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. 4. From September 28, 2020, the evidence is insufficient to establish that the cervical spine disability manifested in unfavorable ankylosis. 5. From the effective date of June 8, 2015, until February 16, 2017, the evidence is insufficient to establish that the Veteran's radiculopathy of the right upper extremity manifested at a moderate incomplete paralysis. 6. From February 16, 2017, until September 28, 2020, the preponderance of the evidence is insufficient to establish that the Veteran's radiculopathy of the right upper extremity manifested at a severe incomplete paralysis. 7. From September 28, 2020, the evidence is insufficient to establish that the Veteran's radiculopathy of the right upper extremity has manifested in complete paralysis, all shoulder and elbow movements lost or severely affected. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an initial rating of 20 percent, but no higher, until September 28, 2020, for the cervical spine disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating higher than 30 percent from September 28, 2020, for the cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 4. The criteria for an initial rating higher than 20 percent; to a rating higher than 40 percent from February 16, 2017, until September 28, 2020; or, to a rating higher than 50 percent from September 28, 2020, for radiculopathy of the right upper extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8610. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably, including active duty service from December 1990 to May 1991, from January 2003 to January 2008, and from April 2011 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2017 and January 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2021. At the Board hearing the Veteran expressed his intention to withdraw his appeal for service connection for sleep apnea, acknowledging that he understood the full effect of the withdrawal. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The appeal for the claim therefore is dismissed and the issue is no longer before the Board. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.201. The Veteran maintains his appeal for higher initial ratings for his service-connected cervical spine disability, radiculopathy of the right upper extremity, and depression, and for service connection for PTSD. The latter two claims will be discussed below in the remand section. Initial Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Cervical Spine The Veteran originally appealed the March 2017 rating decision granting service connection for a cervical spine condition and assigning an initial 10-percent rating from the effective date of June 29, 2016. While the appeal was pending, an October 2020 rating decision granted a higher rating of 30 percent from September 28, 2020. As this was only a partial grant of relief, the Board will consider entitlement to higher ratings across the appeal period. See AB v. Brown, 6. Vet. App. 35, 38 (1993). The Veteran's cervical spine condition is rated under Diagnostic Code (DC) 5242, for degenerative arthritis, which in turn is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20-percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, where the combined range of motion of the cervical spine not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30-percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less, or where there is favorable ankylosis of the entire cervical spine. A 40-percent rating is warranted where there is unfavorable ankylosis of the entire cervical spine. A 100-percent rating, the maximum rating available, is warranted where there is unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension. Id. Turning to the evidence from the effective date of June 29, 2016, a VA examination was provided on February 16, 2017. The Veteran reported his condition had "stayed the same" since originally incurring it. At the time of the examination he was experiencing a flare-up, and due to the pain, range-of-motion testing was not performed. The examiner opined that pain, fatigue, weakness, and lack of endurance during flare-ups would significantly limit functional ability. No estimate of range of motion with repeated use was provided. Additional factors of disability included interference with sitting, less movement than normal, weakened movement, and disturbance of locomotion. There were muscle spasms associated with the condition, though they did not result in abnormal gait or abnormal spinal contour. The overall functional impact included limited movement in turning the neck from left to right, inability to run, jump, or bear weight, and increased neck pain when reaching upwards. Of record are private treatment notes from Dr WS in 2017, including a note that the Veteran experienced "intermittent problems with his neck." Another VA examination was provided on September 28, 2020. The Veteran was again experiencing a flare-up at the time of this examination. Range-of-motion testing found flexion to 15 degrees, with pain in all movements except left lateral flexion. There was no additional lost motion with repetitive use. Cervical flexion after repeated use was estimated to be to 15 degrees. The examiner found that the Veteran's muscle spasms were now resulting in abnormal gait or abnormal spinal contour. Additional factors of disability, which "occur[] daily and increase[] with increased activities," included interference with both sitting and standing, instability of station, disturbance of locomotion, less movement than normal, and weakened movement. Based on the evidence of record, and resolving any reasonable doubt in the Veteran's favor, the Board finds that a higher initial rating of 20 percent is warranted from the effective date of June 29, 2016, until September 28, 2020. The VA examination in February 2017 saw the Veteran during a flare-up, with pain that precluded range-of-motion testing. The examiner additionally found that the Veteran's disability would interfere with sitting and disturb locomotion, and the Veteran reported inability to run, jump, or bear weight. Given this evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the disability picture for the earlier period more nearly approximates a severity akin to the criteria for a 20-percent rating. 38 C.F.R. §§ 4.3, 4.7. The Board further finds, however, that the evidence is insufficient to warrant a higher rating during this period. Though the February 2017 examination was conducted during a flare-up and recommended against range-of-motion testing due to pain, there is no evidence during this period as to the frequency and duration of these flare-ups. The Veteran mentioned at the examination that moving his neck from left to right was "limited," implying that it was not always outright fully limited, and the private treatment record in 2017 reported that the Veteran's neck problems were "intermittent." Together, this evidence indicates that, at the least, the Veteran's condition as found at the February 2017 was not a permanent limitation in his day-to-day life. Moreover, at the September 28, 2020 examination, the Veteran was found to have symptoms that suggested his condition had worsened in comparison to February 2017, including interference not only with sitting but also with standing, new instability of station, and muscle spasm that now resulted in abnormal gait or abnormal spinal contour, in addition to the examiner's express notation that these problems were now being experienced "daily." Thus, the evidence indicates that the Veteran's condition had undergone a worsening by September 28, 2020, in comparison to the disability picture at the time of the February 2017 examination. While the Board acknowledges that a finding of worsening between the February 2017 and September 2020 examinations does not strictly mean that the same disability rating could not be awarded for both periods, in this case the Board finds that the overall evidence during the initial period does not support that the condition was of a severity, frequency, and duration more nearly approximating a severity warranting a 30-percent rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board's role is to assess the weight of all evidence). The Board also finds that the evidence is insufficient to support a rating higher than 30 percent for the period from September 28, 2020. For a higher rating to be warranted, there must be evidence that the condition manifests in symptoms akin to unfavorable ankylosis of the entire cervical spine. Here, the evidence reflects that even during flare-ups the Veteran retains motion in all movements of his neck, and there has never been a finding of ankylosis. Therefore, the evidence does not support a finding of unfavorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a. The Board notes that while the evidence reflects that the Veteran has been diagnosed with intervertebral disc syndrome (IVDS) as a progression of his service-connected cervical spine disability, a higher rating would not be available under the Diagnostic Code for rating IVDS, as there is no evidence that the Veteran has had acute signs and symptoms due to IVDS that required bedrest prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243. Accordingly, an initial rating of 20 percent, but no higher, is granted until September 28, 2020; and, a rating higher than 30 percent from September 28, 2020, is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5242. 2. Radiculopathy of the Upper Right Extremity The Veteran originally appealed the March 2017 rating decision granting service connection for radiculopathy of the upper right extremity and assigning an initial 20-percent rating from the effective date of June 8, 2015. While the appeal was pending, an October 2018 rating decision granted a higher rating of 40 percent from February 16, 2017, and an October 2020 rating decision granted a higher rating of 50 percent from September 28, 2020. As this was only a partial grant of relief, the Board will consider entitlement to higher ratings across the appeal period. See AB, 6 Vet. App. at 38. The Veteran's radiculopathy of the right upper extremity is rated under DC 8610, for neuritis of the upper radicular group of the major (dominant) arm, which is in turn rated as paralysis of the upper radicular group of the major arm. 38 C.F.R. § 4.124a. Under DC 8610, a 40-percent rating is warranted where paralysis is incomplete and moderate; a 50-percent rating is warranted where paralysis is incomplete and severe; and, a 70-percent rating, the highest rating available under these criteria, is warranted where paralysis is complete; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. Id. The term "incomplete paralysis" as it relates to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than complete paralysis pertaining to each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. Under the rating criteria, 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. The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to ensure its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the evidence from the effective date of June 8, 2015, a VA examination was provided on September 25, 2015. The Veteran reported that he sometimes woke up at night due to numb fingers. Objective examination found no pain, no paresthesias or dysesthesias, and no numbness. Reflex testing was all normal. Overall, the examiner graded the Veteran's upper radicular group as normal. In a January 2017 statement, the Veteran's co-servicemember related that upon returning from deployment the Veteran still continued to sometimes have tingling down from his neck. At the February 16, 2017 neck examination, the Veteran reported continuing tingling and numbness at night. When writing or typing on a computer he had constant pain. The condition flared up with sharp, shooting pain down the right arm. The Veteran subjectively reported severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness, leading to an overall grade of severe incomplete paralysis. Objective examination found normal deep tendon reflexes and normal light touch sensing. Strength testing was all normal except for a finding of 4/5 strength in right elbow flexion. Another VA examination for the peripheral nerves was provided on September 28, 2020, with the Veteran reporting continuing severe constant pain, numbness, and paresthesias and dysesthesias, graded at an overall severe level of incomplete paralysis. Objective examination found decreased deep tendon reflexes and decreased light touch sensing. Strength testing was 3/5 in elbow flexion, elbow extension, wrist flexion, wrist extension, and grip. Functional limitations included interference with carrying heavy weight, sitting for a long time, typing a long time, or lying on his right side during sleep. The examiner found that the Veteran could perform sedentary activities if they avoided triggering these impacts. At the April 29, 2021 Board hearing, the Veteran testified that he has constant tingling and numbness in his right arm, which makes it difficult to grip and write, in turn affecting his ability to grasp things or to do jobs like lawncare. He also cannot sleep on his right side. Though he takes prescription medicine for the pain, it does not provide any help for the numbness. He related that he has had these symptoms since the February 2017 examination. Based all the evidence of record, the Board finds that a higher rating is not warranted at any point during the appeal period. For the initial period from the effective date of June 8, 2015, until February 16, 2017, a rating higher than 20 percent is not warranted. At the September 2015 examination only a symptom of numbness at night was recorded, with normal findings and an overall severity grade at normal. There is no evidence showing symptoms that would be of a severity, frequency, and duration to substantiate a finding of a moderate incomplete paralysis. 38 C.F.R. §§ 4.6, 4.124a DC 8610. For the period from February 16, 2017, until September 28, 2020, a rating higher than 40 percent is not warranted. Though the Board acknowledges that the Veteran reported severe symptoms at the February 2017 VA examination and testified at the Board hearing that his current symptoms have been present since that time, the regulations permit a rating higher than a "moderate" severity only where there is evidence beyond "wholly sensory" symptomatology. The Board acknowledges the singular abnormal objective finding at the February 2017 examination of right elbow flexion muscle strength testing graded at 4/5, but finds the overall weight of the findings at the examination against a severe incomplete paralysis, notwithstanding the Veteran's subjective reports. See 38 C.F.R. § 4.6, 4.124a. For the period from September 28, 2020, a rating higher than 50 percent is not warranted. The examination on this date found that while the Veteran had severe symptoms confirmed both objectively and subjectively, the paralysis of his nerve was not complete, still retaining movement in all parts of the right arm and the ability to perform activities such as lifting non-heavy items and sitting or typing for periods that are not long. Evidence of complete paralysis, with all shoulder and elbow movements lost or severely affected, would be needed in order to establish entitlement to the next highest rating. 38 C.F.R. § 4.124a, DC 8610. Thus, entitlement to an initial rating higher than 20 percent; to a rating higher than 40 percent from February 16, 2017, until September 28, 2020; or, to a rating higher than 50 percent from September 28, 2020, is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8610. REASONS FOR REMAND 3. Initial Rating for Depression Regarding the Veteran's initial rating for service-connected unspecified depression with anxious distress, the record reflects that the most recent complete medical evaluation was in July 2017, and the Veteran testified at the April 2021 Board hearing that his condition has worsened, with VA treatment records from 2018 until 2020 showing the Veteran reporting symptoms not found at the July 2017 VA examination. Given the objective evidence of worsening since the most recent complete evaluation, which at this time is over four years old, remand is required in order to provide the Veteran with a new medical examination assessing the current severity of his condition. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. §§ 3.326(a), 3.327(a). 4. Service Connection for PTSD Regarding the Veteran's claim for service connection for PTSD, the Veteran was provided an initial PTSD examination in December 2017, with the examiner opining that at that time the Veteran did not meet the DSM-5 criteria for a diagnosis of PTSD. As stated by the Veteran at the April 2021 Board hearing, VA treatment records show that he has been treated at VA for PTSD, has been prescribed medication for PTSD, and has responded to PCL-5 questionnaires that were positive for PTSD. Thus, the Board finds that a new VA examination, along with an etiology opinion, should be provided in light of the updated evidence indicating the Veteran may have a current diagnosis of PTSD. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the current severity of his service-connected unspecified depression with anxious distress, as well as to assess the nature and etiology of PTSD. Regarding the Veteran's service-connected unspecified depression with anxious distress, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Regarding PTSD, the examiner is asked to opine whether the Veteran currently, or at any point during the appeal period (that is, since approximately November 2017), has a diagnosis of PTSD in conformance with the DSM-5. If so, the examiner must opine whether the Veteran's stressor of witnessing an IED detonate and explode an occupied vehicle is at least as likely as not sufficient to support the diagnosis of PTSD. 2. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.