Citation Nr: 21070388 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-23 121A DATE: November 23, 2021 ORDER An initial 40 percent rating for residuals of sixth cervical vertebral process fracture with traumatic degenerative joint disease (DJD), degenerative disc disease (DDD), and spondylosis, from July 25, 2005, through March 16, 2015, is granted. An initial 40 percent rating for right (major) upper extremity radiculopathy since July 25, 2005, is granted. An initial 40 percent rating for left (minor) upper extremity radiculopathy since July 25, 2005, is granted. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) since January 9, 2015, is granted. FINDINGS OF FACT 1. During the period from July 25, 2005, through March 16, 2015, the Veteran's cervical spine disorder caused ankylosis. 2. Since July 25, 2005, the Veteran's right (major) upper extremity radiculopathy was moderate. 3. Since July 25, 2005, the Veteran's left (minor) upper extremity radiculopathy was severe. 4. The Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation since January 9, 2015. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, from July 25, 2005, through March 16, 2015, for sixth cervical vertebral process fracture with traumatic DJD, DDD, and spondylosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating of 40 percent since July 25, 2005, for right (major) upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8512. 3. The criteria for an initial rating of 40 percent since July 25, 2005, for left (minor) upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8512. 4. The criteria for TDIU since January 9, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from June 1977 to August 1987. In an April 2021 decision, the Board denied a rating of more than 30 percent since March 17, 2015, for the Veteran's cervical spine disorder. The Board did not address the right and left upper extremity nerve impairment and did not address TDIU. Therefore, the Board can address the nerve impairment and TDIU throughout the period on appeal but may only address the cervical spine rating prior to March 17, 2015. Additionally, the Board finds that the Veteran appealed the initial rating assigned following the grant of service connection when he submitted a notice of disagreement (NOD) in March 2006. The RO never issued a statement of the case (SOC) until June 2015. Therefore, the period on appeal begins July 25, 2005. 1. Entitlement to an increased initial rating for residuals of a sixth cervical vertebral process fracture with traumatic DJD, DDD, and spondylosis currently rated as 10 percent from July 25, 2005, to August 13, 2006; 20 percent from August 14, 2006, to June 2, 2010; and 30 percent from June 3, 2010, through March 16, 2015; to include separate ratings for right and left nerve impairment currently rated as 20 percent since June 3, 2010, for left upper extremity radiculopathy, and noncompensable since June 3, 2010, for right hand paresthesias. Some provisions for rating the spine were changed on February 7, 2021. The Board finds, however, that the rating criteria in effect prior to that date are more favorable to the Veteran and will rate his disability based on the criteria in effect prior to that date. A 10 percent rating is warranted 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 is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or for the combined range of motion of the cervical spine not greater than 170 degrees; or, for 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 for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. There are also several relevant note provisions associated with Diagnostic Code 5242. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Paralysis of the upper extremity lower radicular group is rated according to diagnostic code 8512. A 20 percent rating is warranted for mild incomplete paralysis of the lower radicular group of the major and minor upper extremity. Moderate incomplete paralysis of the lower radicular group warrants a 30 percent for the minor extremity and 40 percent for the major extremity. Severe incomplete paralysis of the lower radicular group warrants a 40 percent for the minor extremity and a 50 percent rating for the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8512. VA examinations indicate that the Veteran either had ankylosis or had painful motion beginning at 0 degrees such that he functionally had ankylosis. In the April 2021 remand, the Board directed the RO to obtain a retrospective opinion as to the severity of the Veteran's neck symptoms. In July 2021 the examiner stated that "The gradual progression of degenerative spinal changes over time often results in a natural 'fixation' of the spine resulting in resistance to movement and consequently less pain, therefore, this Veteran's early years with the results of the original injury may, very likely, have been his most significant in terms of pain and disability." The examiner also stated that it was at least as likely as not that there was "limitation causing ankylosis of the entire cervical spine." The record also indicates that the Veteran has had right and left upper extremity nerve symptoms throughout the period on appeal; he was diagnosed with radiculopathy of the lower radicular group. He had decreased reflexes; decreased muscle strength; muscle atrophy; decreased sensation; pain; difficulty with fine motor skills, such as buttoning clothes; numbness and burning to the hands and fingers; and paresthesia. The symptoms in the left (minor) arm were noted to be severe and the symptoms in the right (major) arm were noted to be moderate. Affording the Veteran the benefit of the doubt, the Board finds that a 40 percent rating for the cervical spine disorder is warranted from July 25, 2005, through March 16, 2015, for ankylosis. A 100 percent rating is not warranted as service connection is not in effect for the thoracolumbar spine and, therefore, the Veteran does not have service-connected ankylosis of the entire spine. The Veteran's right and left upper extremity nerve impairment were previously rated under diagnostic code 8515 for the left upper extremity radiculopathy and under 8714 for the right hand paresthesias. However, the record indicates the lower radicular groups were impaired, not only the radial and median nerves. The criteria for rating the lower radicular group under diagnostic code 8512 is more favorable to the Veteran than the criteria for the radial and median nerves and, therefore, the Board will rate the Veteran's impairment using the criteria for the lower radicular group. Given that the Veteran's left (minor) arm symptoms were stated to be severe, and his right (major) arm symptoms were stated to be moderate, and affording the Veteran the benefit of the doubt, a 40 percent rating is warranted for each arm since July 25, 2005. Higher ratings are not warranted as the Veteran has never been determined to have had complete paralysis of the lower radicular group in the left arm and never been determined to have severe incomplete paralysis of the lower radicular group in the right arm. 2. Entitlement to TDIU. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran's service-connected cervical spine disorder and right and left upper extremity radiculopathy are considered one disability because they result from a common etiology. Based on the increased ratings granted above, the Veteran meets the schedular criteria for TDIU since July 25, 2005. A February 2015 TDIU application states that the Veteran last worked full-time on January 8, 2015 and became too disabled to work on January 9, 2015. A statement from his former employer stated that the Veteran's physicians concluded that he should no longer work. A March 2015 statement from the Veteran's orthopedic physician states that he would be unable to work for the rest of his life. The July 2021 retrospective opinion states that the Veteran is unable to secure or follow a substantially gainful occupation due to his cervical spine disorder because his history of spinal injury would be immediately known to any potential employer requiring a medical history or physical examination prior to offering employment and that history would be prejudicial to most employers because they would not want the liability of the Veteran injuring himself further. The physician stated that the Veteran would not be able to perform tasks requiring extensive or rapid changes in head position, and that he would likely have pain when required to maintain a fixed position for a period of time. (CONTINUED ON THE NEXT PAGE) Given the severity of the Veteran's cervical spine disorder and his right and left upper extremity nerve symptoms, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation since January 9, 2015. TDIU is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel 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.