Citation Nr: 21067589 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-44 832 DATE: November 4, 2021 ORDER An effective date earlier than February 23, 2009 for the assignment of a separate compensable rating for left upper extremity radiculopathy is denied. An effective date of February 23, 2009 for the grant of service connection for right upper extremity radiculopathy is granted. REMANDED The issue of a rating greater than 30 percent for severe spinal stenosis, status postoperative cervical spine corpectomy is remanded. FINDINGS OF FACT 1. A rating greater than 20 percent for the cervical spine disability was denied by the RO in a December 2005 rating decision. Although notified of the denial and his appellate rights, the Veteran did not initiate an appeal. 2. The Veteran's claim for an increased rating for his service-connected cervical spine disability was received on February 23, 2009 and in an October 2010 rating decision, the RO assigned a compensable, 30 percent rating for the left upper extremity radiculopathy associated with his service-connected cervical spine disability effective February 23, 2009. 3. In a February 2013 rating decision, the RO, in pertinent part, granted service connection for right upper extremity radiculopathy associated with the service-connected cervical spine disability and assigned a 20 percent rating effective on October 17, 2011. The Veteran, in pertinent part, perfected a timely appeal of the effective date for the award of service connection. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 23, 2009 for the award of a separate compensable rating for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 2. The criteria for an effective date of February 23, 2009 for the award of service connection for right upper extremity radiculopathy are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to August 1976. These matters came before the Board of Veterans' Appeals (Board) on appeal from March 2009, October 2010, and February 2013 rating decisions issued by the RO. In a September 2020 decision, the Board denied a rating greater than 30 percent for the cervical spine disability; an effective date earlier than February 23, 2009 for the assignment of a separate compensable rating for left upper extremity radiculopathy, and an effective date earlier than October 17, 2011 for the award of service connection for right upper extremity radiculopathy. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted the parties' joint motion for partial remand (JMPR) and vacated and remanded the portion of the Board's decision that denied a rating greater than 30 percent for the cervical spine disability; an effective date earlier than February 23, 2009 for the assignment of a separate compensable rating for left upper extremity radiculopathy, and an effective date earlier than October 17, 2011 for the award of service connection for right upper extremity radiculopathy. Regarding the claim for a rating greater than 30 percent for the cervical spine disability, the parties agreed that remand was necessary to obtain a medical opinion as to the functional loss of the cervical spine disability during flare-ups and/or with repeated use or explanation why such opinion cannot be offered. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In addition, noting that the Board found "several VA examinations have diagnosed the Veteran with ankylosis" and that "the Veteran's condition is not considered ankylosis for VA compensation purposes because ankylosis requires a complete loss of range of motion," the parties agreed that the Board failed to discuss 38 C.F.R. §§ 4.40 and 4.45 and if the Veteran's functional loss was the functional equivalent of ankylosis. Regarding the claim for an effective date earlier than February 23, 2009 for the assignment of a separate compensable rating for left upper extremity radiculopathy, the parties agreed that the Board did not consider whether November 2005 and January 2007 treatment records served as an informal claim of entitlement to service connection for left upper extremity radiculopathy. Regarding the claim for an effective date earlier than October 17, 2011 for the grant of service connection for right upper extremity radiculopathy, the parties agreed that the Board's finding that the evidence of record did not establish that the Veteran first began to manifest radiculopathy of the right lower extremity more than one year prior to October 17, 2011 was factually inaccurate. Effective Date Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date. 38 U.S.C. § 5110(b). 1. Entitlement to an effective date earlier than February 23, 2009 for the award of a separate compensable rating for left upper extremity radiculopathy Claims for an increased rating for the cervical spine disability and service connection for a left upper extremity neurological disability associated with the Veteran's service-connected cervical spine disability were received on October 19, 2005. The November 2005 VA spine examination report documented objective examination findings of the cervical spine disability. The November 2005 VA peripheral nerves examination report documents the physician's assessment that there was some sensory loss in the left C6 distribution and also mild weakness about the left shoulder girdle (some predominantly C5 muscles) and the left hand (C8-T1 muscles). In the December 2005 rating decision, the RO denied a rating greater than 20 percent for the cervical disability. In addition, the RO noted that the Veteran had claimed a left upper extremity neurological disorder as secondary to the service-connected cervical spine disability and that there was some sensory loss in the left C6 distribution and mild weakness about the left shoulder girdle and the left hand (i.e., there were symptoms of a left upper extremity neurological disorder). The RO explained that the symptoms were included in the 20 percent rating for the cervical spine disability since the radiculopathy had not manifested to a compensable degree. The RO stated that a noncompensable rating is assigned unless there is incomplete paralysis of hand movements which is mild. The RO concluded that the left upper extremity radiculopathy disability did not warrant a separate evaluation at that time. The Veteran was notified of the decision by a letter dated December 14, 2005. The Veteran did not appeal the decision. The Veteran's claim for an increased rating for his service-connected cervical spine disability was received on February 23, 2009. In the appealed October 2010 rating decision, the RO granted compensation (i.e., a separate compensable rating) for the left upper extremity radiculopathy and assigned a 30 percent rating effective February 23, 2009 (the day the Veteran's claim for an increased rating for the cervical spine disability was received). Considering the findings of the November 2005 VA peripheral nerves examination report, the December 2005 rating decision essentially established service connection for left upper extremity radiculopathy. However, because the RO found that the left upper extremity radiculopathy had not manifested to a compensable degree, the RO included the symptoms of the left upper extremity radiculopathy in the 20 percent rating for the cervical spine disability and concluded that the left upper extremity radiculopathy disability did not warrant a separate evaluation at that time. The Veteran did not file a timely appeal and that decision is final. The Veteran's claim for an increased rating for his service-connected cervical spine disability was received on February 23, 2009 and in the appealed October 2010 rating decision, the RO granted a separate, compensable, 30 percent rating for the left upper extremity radiculopathy effective February 23, 2009 (the day the Veteran's claim for an increased rating for the cervical spine disability was received). A January 18, 2007 VA treatment record documents the Veteran's report, in pertinent part, of new episodes of numbness and tingling in the left upper extremity. Because the Veteran's claim on appeal was received by VA prior to March 24, 2015, the January 18, 2007 VA treatment record is accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157 (b). However, a complete claim or intent to file a claim for an increase was not received within 1 year of the date of the January 18, 2007 VA treatment record. Thus, January 18, 2007 cannot be the effective date for the assignment of the separate, compensable, 30 percent rating for left upper extremity radiculopathy. 38 C.F.R. § 3.400 (o)(2) To reiterate, the Veteran's claim for an increased rating for his service-connected cervical spine disability was received on February 23, 2009. Ultimately, the RO granted a separate, compensable, 30 percent rating for the left upper extremity radiculopathy and assigned the appropriate effective date of February 23, 2009. Effective dates for award of increased compensation shall be the earliest date it is ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date for a claim for increase will not be earlier than date of receipt of claim. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. Here, no exceptions to the general rule are applicable. February 23, 2009 is the date of receipt of claim in this present appeal. 38 C.F.R. § 3.400. 2. Entitlement to an effective date earlier than October 17, 2011 for the award of service connection for right upper extremity radiculopathy The Veteran's claim for an increased rating for his service-connected cervical spine disability was received on February 23, 2009. In the appealed February 2013 rating decision, the RO in part, granted service connection for right upper extremity radiculopathy and assigned a 20 percent rating effective October 17, 2011. A May 2009 operative report reflects that the Veteran underwent surgical intervention for mild to moderate cervical myelopathy that included symptoms in his hands. An April 2010 VA neurosurgery consult record reflects that the Veteran continued to have pain and weakness of his bilateral upper extremities following his most recent surgery in May 2009. On physical examination, he had decreased muscle strength (4/5) throughout upper extremities on all muscle groups tested. An April 2010 VA treatment record documents that the Veteran underwent follow-up CT cervical myelogram for cervical fusion and cervical radiculopathy and cervalgia. A January 2013 VA cervical spine examination report reflects, in pertinent part, that the Veteran has mild right upper extremity radiculopathy involving C5/C6 nerve roots (upper radicular group). Note 1 provides that associated objective neurologic abnormalities of the cervical spine disability are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. Based on the totality of this evidence and given the Veteran has continuously been prosecuting a claim for an increased rating for his cervical spine disability and has manifested symptoms of right upper extremity radiculopathy since date of receipt of the claim, an effective date of February 23, 2009, for the grant of service connection for the right upper extremity radiculopathy is warranted. To that extent, the appeal is allowed. REASONS FOR REMAND 1. The issue of a rating greater than 30 percent for severe spinal stenosis, status postoperative cervical spine corpectomy is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that the severity of his cervical spine disability is not adequately contemplated by the 30 percent disability rating currently assigned. Considering the parties' June 2021 JMPR, the Board finds the evidence of record is insufficient for determining whether an increased rating may be assigned. The RO must obtain a VA medical opinion as to the functional loss of the cervical spine disability during flare-ups and/or with repeated use or explanation why such opinion cannot be offered. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA spine examination to assist in determining the nature and severity of the cervical spine disability. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic imaging and radiography, should be accomplished and all clinical findings should be reported in detail. Specifically, the examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible, he or she should provide a detailed explanation for why testing could not be accomplished. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The degree of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner must also clarify whether the Veteran has cervical spine ankylosis or the functional equivalent of cervical spine ankylosis given his functional loss due to his cervical spine disability. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran's cervical spine disability; however, his or her attention is drawn to the following: *March 2009 VA spine examination report reflects the Veteran's complaint of constant cervical spine pain. Range of motion measurements were flexion to 4 degrees, extension to 4 degrees, right lateral flexion to 0 degrees, left lateral flexion to 0 degrees, right lateral rotation to 14 degrees and left lateral rotation to 10 degrees. There was no additional limitation with repetition motion. The physician commented that he was unable to estimate function in a flare-up without undue speculation. *January 2010 VA spine examination report reflects the Veteran's complaint of constant cervical spine pain. Range of motion measurements were flexion to 10 degrees, extension to 2 degrees, right lateral flexion to 8 degrees, left lateral flexion to 6 degrees, right lateral rotation to 20 degrees and left lateral rotation to 8 degrees with pain in all planes of motion, worsening at the end of the motion. There was no additional limitation with repetition motion. *January 2013 VA cervical spine examination report reflects the Veteran's complaint of constant cervical spine pain. Range of motion measurements were flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees with pain in all planes of motion. There was no additional limitation of motion with repetitive use testing. The examiner commented to estimate functional loss during a flare-up would require mere speculation. *August 2014 VA cervical spine examination report reflects range of motion measurements were flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. There was no additional limitation of motion with repetitive use testing. The examiner indicated the Veteran had favorable ankylosis of the entire cervical spine. The examiner commented that the Veteran could have limitation in range of motion, endurance, joint function, and amount of pain in functional capacity, but the examiner was unable to estimate the additional loss of range of motion during a flare-up related thereto without resorting to mere speculation. *October 2018 VA neck (cervical spine) conditions examination report reflects range of motion measurements were flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees and left lateral rotation to 20 degrees. He exhibited increased pain which interfered with moving his head in all directions. There was no additional limitation of motion with repetitive use testing. The examiner was unable to determine if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up without mere speculation. The examiner indicated the Veteran had favorable ankylosis of the entire cervical spine. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.