Citation Nr: 21068388 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 09-18 826A DATE: November 10, 2021 ORDER Service connection for right ear hearing loss is denied. Entitlement to an initial compensable disability rating for left ear hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent, prior to December 10, 2019, and in excess of 20 percent thereafter, for degenerative disc disease of the cervical spine is denied. A separate 20 percent, but no higher, rating for left upper extremity radiculopathy prior to December 10, 2019 is granted, subject to the law and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran does not currently have a right ear hearing loss disability for Department of Veterans Affairs (VA) purposes. 2. The Veteran's left ear hearing loss has been manifested by not worse than a level I hearing impairment. 3. Prior to December 10, 2019, the Veteran's cervical spine disability was manifested by normal flexion with pain on movement and a combined range of motion of no greater than 225 degrees with pain. 4. Prior to December 10, 2019, the Veteran experienced symptoms of mild incomplete paralysis in the left upper extremity. 5. From December 10, 2019, the Veteran's cervical spine disability is manifested by flexion limited to 21 degrees, including with consideration of pain, fatigue, weakness, and lack of endurance. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for an initial disability rating in excess of 10 percent, prior to December 10, 2019, and in excess of 20 percent thereafter, for degenerative disc disease of the cervical spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5243. 4. The criteria for a separate 20 percent, but no higher, rating for left upper extremity radiculopathy prior to December 10, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to March 2008. This matter is before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2011 and December 2020, the Board remanded the issues on appeal for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right ear hearing loss The Veteran and his representative assert that he has a bilateral hearing loss disability that originates from his active-duty service. The Board notes that during the course of the appeal, the Veteran was granted service connection for left ear hearing loss. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran's hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing loss disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). As to a claim for service connection for hearing loss, the first threshold question that must be addressed is whether the Veteran has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Turning to the medical evidence at hand, the Veteran was provided a VA audiological examination in January 2008. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 15 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. This examination did not show the existence of a right ear hearing loss disability under § 3.385. In December 2011, the Board remanded the claim to afford the Veteran a new VA examination. The Veteran was provided another VA audiological examination in December 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 15 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. This examination also did not show the existence of a right ear hearing loss disability under § 3.385. The Veteran was provided another VA audiological examination in January 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 0 5 5 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. This examination also did not show the existence of a right ear hearing loss disability under § 3.385. In sum, the Board finds that service connection for right ear hearing loss is not warranted. After a review of the record, the Board has found no evidence that demonstrates that the Veteran has right ear hearing loss for VA compensation purposes. The Board acknowledges that the Veteran asserts that he does in fact have current right ear hearing loss; however, the Veteran's statements are found to be outweighed by the objective clinical testing that shows the Veteran does not have right ear hearing loss for VA purposes. Accordingly, based on the VA examination results and evidence of record, service connection for right ear hearing loss must be denied because there is no current right ear hearing loss disability for VA benefits purposes. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and service connection for right ear hearing loss is not warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable disability rating for left ear hearing loss The Veteran was granted service connection for his left ear hearing under Diagnostic Code 6100 for sensorineural hearing loss. 38 C.F.R. § 4.85. The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for the hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The Veteran was provided a VA audiological examination in January 2008. This examination does not provide for a compensable rating for his hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 0 5 40 25 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The average decibel loss in the left ear was 18 (17.5). These audiological findings correspond to level I hearing in the left ear. 38 C.F.R. § 4.85, Table IV. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. As the right ear is not currently service connected, it will be assigned a level I hearing impairment designation. 38 C.F.R. § 4.85(f). Under Table VII, a designation of level I in one ear and I in the other yields a noncompensable disability rating, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. In December 2011, the Board remanded the claim to afford the Veteran a new VA examination. The Veteran was provided another VA audiological examination in December 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 10 10 40 35 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The average decibel loss in the left ear was 24 (23.75). These audiological findings correspond to level I hearing in the left ear. 38 C.F.R. § 4.85, Table IV. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. As the right ear is not currently service connected, it will be assigned a level I hearing impairment designation. 38 C.F.R. § 4.85(f). Under Table VII, a designation of level I in one ear and I in the other yields a noncompensable disability rating, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran was provided another VA audiological examination in January 2020. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 0 0 35 40 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The average decibel loss in the left ear was 19 (18.75). These audiological findings correspond to level I hearing in the left ear. 38 C.F.R. § 4.85, Table IV. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Since the right ear is not currently service connected, it will be assigned a level I hearing impairment designation. 38 C.F.R. § 4.85(f). Under Table VII, a designation of level I in one ear and I in the other yields a noncompensable disability rating, but no higher. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board expressly acknowledges its consideration of the lay evidence of record, including the Veteran's reports of difficulty telling where some sounds are coming from, having a harder time understanding people talking on his left side, and difficulty understanding speech in noisy settings. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim and thus entitlement to a compensable rating must be denied. 3. Entitlement to an initial disability rating in excess of 10 percent, prior to December 10, 2019, and in excess of 20 percent thereafter, for degenerative disc disease of the cervical spine The Veteran and his representative claim that he is entitled to a higher rating for his service-connected cervical spine disability. The disability is rated at 10 percent disabling, prior to December 10, 2019, and at 20 percent thereafter under the General Rating Formula for Diseases and Injuries of the Spine. During the course of the appeal, the Veteran has been afforded five VA examinations in January 2008, November 2008, December 2019, January 2020, and August 2021. The January 2008 VA examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. The Veteran reported having 8 out of 10 pain that was constant, sharp, burning, stabbing, dull, achy, and stinging. The Veteran reported having left upper extremity radiation of burning pain that is constant. Limitations on his daily activities included not being able to do strenuous activity, a decrease in sexual activity, and not being able to sit for greater than 15 minutes. The Veteran's flexion was normal at 45 degrees, the extension was limited to 25 degrees (normal is 45), right lateral flexion was normal at 45 degrees, left lateral flexion was normal at 45 degrees, right rotation was limited to 70 degrees (normal is 80), and left rotation was limited to 70 degrees (normal is 80). The Veteran experienced pain throughout these ranges of motion, including 10/10 pain with flexion and extension. The examiner indicated there was no change in range of motion or further pain or weakness after repetitive movements or when resistance was applied. Neurological examination of the upper extremities was normal, including sensation testing. The November 2008 VA examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. The Veteran reported having severe, constant aching pain from the neck into the left arm. The Veteran did not report having any flare ups. He indicated that he experienced weakness into the left arm. The Veteran reported the neck did not have an effect on his occupation or daily activities as he worked through the pain. The Veteran's range of motion was limited, and he experienced pain on motion--specifically the Veteran's flexion was normal at 45 degrees, the extension was limited to 30 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 40 degrees (normal is 45), right rotation was normal at 80 degrees, and left rotation was limited to 50 degrees (normal is 80). He noted pain on flexion from 40 to 45 degrees with no pain from 0 to 40 degrees and pain at the end of extension, bilateral lateral flexion, and bilateral rotation with no pain from 0 to the end of the range of motion. There was no additional limitation of motion on observed repeated use and no weakness noted. There were objective findings of tenderness in the left trapezius from the mid back through the left shoulder into the base of the skull. There were no postural abnormalities or ankylosis noted on examination. The Veteran had normal muscle strength, no muscle atrophy, normal reflexes, and normal sensory examinations. The December 2019 VA examiner diagnosed the Veteran with intervertebral disc syndrome. The Veteran reported that his neck pain continues to worsen. The Veteran also reported that he has flare-ups that occur one to two times per month and last for about a day; these flare-ups are provoked when he sits up straight, lies on his back, or looks up or down for prolonged periods of time; and the flare-ups are alleviated by rest, heat, muscle rubs, and tens units. At worst, the disability had a severity of eight out of ten, at best the Veteran's severity is a four out of ten, and during the examination it was a five out of ten. The Veteran's range of motion was limited, and he experienced pain on motion--specifically the Veteran's flexion was limited to 30 degrees (normal is 45), the extension was limited to 30 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 30 degrees (normal is 45), right rotation was limited to 70 degrees (normal is 80), and left rotation was limited to 50 degrees (normal is 80). There was pain with all ranges of motion. The examiner noted that the Veteran's range of motion itself caused difficulty with all tasks and activities requiring ranges of motion in all planes. There is no additional limitation to range of motion after observed repetitive use. The Veteran reported experiencing a 20 to 30 percent loss of motion during flare-ups or after repeated use over time due to pain and fatigue, which would signify that his flexion is limited to 21 degrees during flare-ups or after repeated use over time. Testing revealed that the Veteran had muscle spasms, however, they did not result in abnormal gait or abnormal spinal contour. Testing also revealed no guarding, normal muscle strength and reflex examinations. The Veteran also had a normal sensory examination in his right side, however, there were decreased results on the left side. The Veteran reported having mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity and no symptoms in the right upper extremity. There were no other neurological abnormalities, including bowel or bladder problems. No ankylosis was noted. The Veteran's intervertebral disc syndrome did not result in prescribed bed rest. There was no noted use of an assistive device. The examiner noted that the Veteran experiences functional loss resulting in pain and stiffness, due to these symptoms the Veteran has to cancel planned outing or activities during flare-ups or after repeated use over time. The January 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported that his neck pain continues, and limits his ability to play sports, and that he cannot stand or sit for long periods of time. The Veteran also reported that he has flare-ups that occur one to two times per month, are severe, and last for 45 minutes to an hour; these flare-ups are precipitated by sitting straight up, bending certain ways, and too much movement; and the flare-ups are alleviated by pain management and medication. The Veteran's range of motion was initially normal, but he experienced pain on motion that caused functional loss. There was additional limitation to range of motion after observed repetitive use, specifically the Veteran's flexion was limited to 35 degrees (normal is 45), the extension was limited to 15 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 30 degrees (normal is 45), right rotation was limited to 55 degrees (normal is 80), and left rotation was limited to 55 degrees (normal is 80). There was additional limitation to range of motion due to pain during repeated use over time and flare-ups due to pain, specifically the Veteran's flexion was limited to 30 degrees (normal is 45), the extension was limited to 15 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 30 degrees (normal is 45), right rotation was limited to 50 degrees (normal is 80), and left rotation was limited to 50 degrees (normal is 80). Testing revealed no muscle spasms or guarding, normal muscle strength, reflex, and sensory results. The Veteran reported experiencing moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity and no symptoms in the right upper extremity. The examiner indicated there was mild radiculopathy in the left upper extremity and the right upper extremity was not affected. There were no other neurological abnormalities. No ankylosis was noted. The Veteran's intervertebral disc syndrome did not result in prescribed bed rest. There was no noted use of an assistive device. The examiner noted that the Veteran experiences functional impact due to moderate to severe cervical spine pain with sitting straight up, bending certain ways, and too much movement. The August 2021 VA examiner diagnosed the Veteran with degenerative disc disease of the cervical spine and intervertebral disc syndrome. The Veteran reported that his neck pain has progressed in severity and frequency over the years which affects activities and certain movements, causes headaches, and requires frequent position changes to alleviate the discomfort, and the Veteran was currently undergoing interventional steroid injections for the neck pain which provide temporary relief. The Veteran also reported that his current symptoms include achy throbbing, sharp, shooting, radiating numbness and tingling in the left upper extremity. The Veteran also reported that he has flare-ups that manifest with increased neck pain with headaches, left arm numbness and tingling, occurring two to three times weekly, lasting from thirty minutes to an hour; usually precipitated by increased activity and movement; and alleviated by rest, medications, and changing positions. The Veteran also reported experiencing functional impairment rendering the Veteran unable to change positions at will, unable to turn his head and neck in certain directions, unable to lift or carry heavy objects, and unable to perform high impact activities. The Veteran's range of motion was limited, and he experienced pain on motion--specifically the Veteran's flexion was limited to 35 degrees (normal is 45), the extension was limited to 25 degrees (normal is 45), the right lateral flexion was limited to 35 degrees (normal is 45), the left lateral flexion was limited to 35 degrees (normal is 45), right rotation was limited to 75 degrees (normal is 80), and left rotation was limited to 75 degrees (normal is 80). The Veteran experienced pain with each range of motion. The examiner noted that passive range of motion was the same as initial active range of motion. There was additional limitation to range of motion after observed repetitive use due to pain, fatigability, weakness, and lack of endurance; specifically the Veteran's flexion was limited to 30 degrees (normal is 45), the extension was limited to 20 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 30 degrees (normal is 45), right rotation was limited to 70 degrees (normal is 80), and left rotation was limited to 70 degrees (normal is 80). There was additional limitation to range of motion noted during repeated use over time due to pain, fatigability, weakness, and lack of endurance; specifically the Veteran's flexion was limited to 30 degrees (normal is 45), the extension was limited to 15 degrees (normal is 45), the right lateral flexion was limited to 30 degrees (normal is 45), the left lateral flexion was limited to 30 degrees (normal is 45), right rotation was limited to 70 degrees (normal is 80), and left rotation was limited to 70 degrees (normal is 80). There was also additional limitation to range of motion noted during flare-ups due to pain, fatigability, weakness, and lack of endurance; specifically, the Veteran's flexion was limited to 25 degrees (normal is 45), the extension was limited to 15 degrees (normal is 45), the right lateral flexion was limited to 25 degrees (normal is 45), the left lateral flexion was limited to 25 degrees (normal is 45), right rotation was limited to 65 degrees (normal is 80), and left rotation was limited to 65 degrees (normal is 80). There was localized tenderness due to an adjustment of the spinal posture to compensate for neck pain, but the examiner noted that it did not result in abnormal gait or abnormal spinal contour. Testing revealed that the Veteran's right side had normal muscle strength and the left side had active movement against some resistance. Normal reflexes were noted. The Veteran's right side had normal sensory results; however, the left side had decreased results. The Veteran reported having mild intermittent pain, paresthesias/dysesthesias, and numbness in the left upper extremity, and no symptoms in the right upper extremity. No ankylosis was noted. The Veteran's intervertebral disc syndrome did not result in prescribed bed rest. There was no noted use of an assistive device. The examiner noted that the Veteran experiences functional impact that renders the Veteran unable to work by causing him to be unable to change positions at will, unable to turn his head and neck in certain directions, unable to lift or carry heavy objects, and unable to perform high impact activities which interfere with completion of work-related tasks and activities of daily life. A. Prior to December 10, 2019 The Board finds that the Veteran does not qualify for an evaluation in excess of 10 percent for his cervical spine disability. Even when considering pain and other factors contributing to functional loss, limitation of flexion was not limited to greater than 15 degrees, but not greater than 30 degrees prior to December 10, 2019. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Flexion was at most limited to 40 degrees with pain during this time period. Additionally, the combined range of motion of the cervical spine was not limited to less than 170 degrees. During the January 2008 VA examination, the combined range of motion was 300 degrees. During the November 2008 VA examination, the combined range of motion was 230, and with pain was lessened to 225. Neither of these combined ranges of motion, even with consideration of pain and other factors causing functional loss were shown to result in a combined range of motion of less than 170 degrees. There also was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Evidence of noncompensable limitation of motion with pain is consistent with a rating of 10 percent under Burton. A rating in excess of 10 percent is not warranted for additional functional loss under DeLuca v. Brown, 8 Vet. App. 202 (1995), because there is no additional uncompensated compensable limitation of motion, and his noncompensable limitation of motion is already being compensated. The evidence also does not reflect any incapacitating episodes which require prescribed bed rest during a 12-month period that would warrant a rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered whether the Veteran is entitled to any separate rating based on neurological impairment. During this period the evidence reflects that the Veteran experienced left upper extremity radiation of burning pain that is constant and severe, constant aching pain from the neck into the left arm. The Board finds that these sensory manifestations are sufficient to reflect that the Veteran had mild incomplete paralysis of the left upper extremity during the appeal period prior to December 10, 2019. Therefore, the Board finds that a separate 20 percent rating under Diagnostic Code 8513 is warranted during this period based on mild incomplete paralysis of all radicular groups. The evidence during this time period does not reflect that the Veteran experienced decreased sensation, decreased muscle strength, absent or decreased reflexes, or muscle atrophy in the left upper extremity. Therefore, the weight of the evidence is against a finding that the Veteran is entitled to a higher 30 percent rating for moderate incomplete paralysis of the left upper extremity (his minor arm) prior to December 10, 2019. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The record also does not reflect neurological impairment in the right upper extremity, bowel or bladder impairment, or other neurological impairment that would warrant any further separate compensable ratings prior to December 10, 2019. For these reasons, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's cervical spine disability prior to December 10, 2019, but a separate 20 percent, but no higher, rating for left upper extremity radiculopathy is warranted. B. As of December 10, 2019 The Board finds that the medical evidence of record as of December 10, 2019, reflects findings that are consistent with a 20 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. His most significant loss of motion for this period in his flexion range of motion, was at 21 degrees. However, that measurement squarely places the Veteran's limited movement within the currently assigned 20 percent criteria for rating the cervical spine, including consideration of the Veteran's pain, fatigability, weakness, and lack of endurance on functional use. Specifically, the Veteran's cervical spine limitation of flexion has not been limited to more than 15 degrees of motion, even when considering these factors. The Veteran also denied any incapacitating episodes which require prescribed bed rest within the previous 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any bowel or bladder impairment due to his cervical spine disability. The Board acknowledges that the Veteran complained of his cervical spine disability causing him to have headaches. However, the Veteran has been separately service connected for headaches throughout the period on appeal and any evaluation of his cervical spine disability based on headaches would be considered pyramiding. 38 C.F.R. § 4.14. Further, a January 2020 rating decision awarded the Veteran service connection for left upper extremity radiculopathy, rated 20 percent disabling, effective December 10, 2019 while a February 2020 rating decision awarded service connection for right upper extremity radiculopathy, rated 20 percent disabling, effective January 20, 2020. The Veteran did not appeal the ratings assigned; therefore, entitlement to a higher rating for left and right upper extremity radiculopathy is not before the Board. However, for the right upper extremity radiculopathy, the question of whether there was compensable neurological impairment in the right upper extremity from December 10, 2019 to January 19, 2020 is part of the consideration of the increased rating claim for the cervical spine. The Board finds that during that period the evidence did not reflect findings warranting a separate compensable evaluation for neurological impairment of the right upper extremity. On December 2019 VA examination, the Veteran did not report experiencing any symptoms of radiculopathy, such as pain or numbness, and objective testing did not reveal any decreased sensation, decreased muscle strength, decreased or absent reflexes, or muscle atrophy. Therefore, the preponderance of the evidence is against a finding that the Veteran is entitled to a separate compensable rating for right upper extremity radiculopathy prior to January 20, 2020. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent for his cervical spine disability as of December 10, 2019. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.