Citation Nr: 21070778 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 08-36 534 DATE: November 26, 2021 ORDER Entitlement to an initial rating greater than 20 percent disabling for right upper extremity radiculopathy prior to June 28, 2021, is denied. Entitlement to a rating of 40 percent disabling, but no higher, for right upper extremity radiculopathy is granted from June 28, 2021. Entitlement to a rating greater than 10 percent disabling for degenerative arthritis cervical spine with intervertebral disc syndrome (IVDS) prior to June 28, 2021, and greater than 20 percent disabling beginning that date, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disroder (MDD), is remanded. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran's right upper extremity radiculopathy was manifested by symptoms of greater than slight incomplete paralysis of the major extremity prior to June 28, 2021. 2. The evidence is at least in equipoise as to whether the Veteran's right upper extremity radiculopathy was manifested by symptoms of moderate incomplete paralysis, but no greater, of the major extremity on or after June 28, 2021. 3. Prior to June 28, 2021, the Veteran's cervical spine disability was manifested by 35 degrees of forward flexion at worst; during that period, the evidence did not establish muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 4. Beginning June 28, 2021, the Veteran's cervical spine disability was manifested by 55 degrees of forward flexion at worst, and with muscle spasm resulting in abnormal gait or spinal contour, but not by favorable or unfavorable ankylosis of the cervical or entire spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating greater than 20 percent disabling for right upper extremity radiculopathy prior to June 28, 2021, have not been met. 38 U.S.C. §§ 1110, 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.3, 4.40, 4.45, 4.124a, Diagnostic Codes 8710, 8511. 2. Resolving any doubt in favor of the Veteran, the criteria for entitlement to a rating of 40 percent, but no higher, for right upper extremity radiculopathy have been met from June 28, 2021. 38 U.S.C. §§ 1110, 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.3, 4.40, 4.45, 4.124a, Diagnostic Codes 8710, 8511. 3. The criteria for entitlement to a rating greater than 10 percent disabling for degenerative arthritis cervical spine with IVDS prior to June 28, 2021, and greater than 20 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7. 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from to September 1972 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007, December 2014, and August 2021 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland and Los Angeles, California. In his November 2008 substantive appeal, the Veteran requested a "Travel Board" hearing; although he failed to report for the scheduled hearing in July 2015, later that month he requested that it be rescheduled. The Veteran also did not report for the rescheduled hearing in March 2017, without good cause shown. The request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(d). The Veteran's appeal was previously remanded in September 2015, September 2017, September 2019, and November 2020 for additional development, to include obtaining correctional facility and VA treatment records, as well as conducting VA examinations related to the issues on appeal. The RO's efforts have substantially complied with the instructions contained in the September 2015, September 2017, September 2019, and November 2020 BVA remands; accordingly, additional remand is not required. See Dyment v. West, 13 Vet. App. 141, 146-47 (aff'd sub nom. Dyment v. Principi, 287 F.37 1377 (Fed. Cir. 2002)). Finally, the Veteran is in receipt of a total rating based on individual unemployability from May 9, 2011. The Veteran was in the custody of the California Department of Corrections for the twelve years preceding the grant of a TDIU and did not meet the schedular requirements for a TDIU prior to May 9, 2011. Because it is not reasonably raised from the record or from the appeal, referral for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b) prior to May 9, 2011, is not warranted. See 38 C.F.R. § 4.16(b). Disability evaluations are determined by the application of facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). Generally, the period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 1. Entitlement to an initial rating greater than 20 percent disabling for right upper extremity radiculopathy The Veteran contended in his July 2007 statement that his "condition has worsened since [his] last evaluation" and has "problems of using [his] right arm." The June 2021 VA peripheral nerves examination shows that his right arm is his major upper extremity. His upper extremity radiculopathy disability is evaluated as neuralgia of the upper radicular group under 38 C.F.R. § 4.124a, Diagnostic Code 8710. Under the rating criteria for the upper radicular group, a 20, 30, and 40 percent ratings are assigned for mild, moderate, and severe incomplete paralysis of the upper radicular group, respectively. A 70 percent rating is provided for complete paralysis of the major extremity. See 38 C.F.R. § 4.124a, DC 8710. As defined in 38 C.F.R. § 4.124a, the term incomplete paralysis, "indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration." When the involvement of impaired nerve function] is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. The Veteran's right upper extremity radiculopathy does not manifest as more than slight incomplete paralysis of the upper radicular group prior to June 24, 2021, and as such, does not meet the evaluation criteria for greater than a 20 percent rating prior to that date. In a May 2011 private treatment record it was noted that the Veteran's deep tendon reflexes of the upper extremities were "2+ and equal," and the examining physician noted that the Veteran was not "making a full effort" regarding grip strength. VA treatment in March 2012 found that the Veteran's posture was responsible for "pain and radicular symptoms." At the December 2013 VA examination, the radial nerve, median nerve, upper radicular group, and middle radicular group were all noted with "Incomplete paralysis" and "Mild" symptoms. The ulnar, musculocutaneous, circumflex, and long thoracic nerves and lower radicular group were documented with "Normal" function. Symptoms, documented as "Intermittent pain, Paresthesias and / or dysesthesias, Numbness" were all documented as "Mild." No other neurologic abnormalities or other pertinent physical findings, complications, conditions, signs, or symptoms were documented. Moreover, the February 2018 VA physical therapy record and May 2018 VA pain medicine consult records show the Veteran reported improvement in "arm symptoms" after an August 2017 fusion procedure. A November 2019 VA treatment note dictated "sensation bilateral upper extremities equal, bilateral grips equal." In December 2020, a VA treatment record showed the Veteran was measured with "Normal grip strength." However, at the June 2021 VA neck examination, the examiner noted moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness. Conversely, at the June 2021 VA peripheral nerves examination, the examiner indicated that nerve function in the right upper extremity, for the upper radicular group, was "normal." To reconcile these inconsistencies, an addendum opinion was obtained in August 2021. The VA examining physician reported: "The nerve examination reports two major functions. They are the MOTOR function and the SENSORY function. Claimant has NORMAL MOTOR function, without any paralysis. Hence, the NORMAL function is checked, and the SENSORY function is checked as abnormal with MODERATE impairment. Claimant's nerve impairment is WHOLLY SENSORY, and for VA purposes, when nerve impairment is wholly sensory, the evaluation should be mild, or at most, moderate." (emphasis in original) Applying the provisions of 38 C.F.R. § 4.7, the Veteran is entitled to the higher of two potential evaluations. See 38 C.F.R. § 4.7 ("[T]he higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."). According to 38 C.F.R. § 4.124a, the Veteran is not entitled to consideration for severe, incomplete paralysis because his impaired nerve function was determined by the August 2021 examiner to be "[wholly sensory]." Resolving all doubt in favor of the Veteran, the evidence is at least in equipoise as to whether he meets the criteria for a higher evaluation of right upper extremity radiculopathy from August 6, 2021, the date his VA examination determined his symptoms to be "mild" or "moderate." Therefore, the Board assigns a rating of 40 percent, but no higher, from August 6, 2021. Application of the regular rating schedule standards is not impractical due to an "exceptional or unusual" disability. Aside from a diskectomy in November 2005 and August 2017, as noted in the May 2006 Mercy Hospital Bakersfield Neurology Consultation and February 2018 VA Physical Therapy Treatment Plan Note, the record does not contain evidence of "frequent periods of hospitalization" or "marked interference with employment" due to the Veteran's thoracolumbar spine disability. Because it is not reasonably raised from the record or from the appeal, referral for extraschedular consideration under 38 C.F.R. § 3.321 is not warranted. See 38 C.F.R. § 3.321(b)(1). In summary, a clear preponderance of the evidence of record indicates the Veteran does not meet the relevant diagnostic criteria under 38 C.F.R. § 4.71a, Diagnostic Code 8710, for entitlement to a rating greater than 20 percent disabling prior to June 24, 2021, or entitlement to a rating greater than 40 percent beginning that date. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right arm disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the residuals of his right arm disability are more severe than is reflected in the current evaluation rating. The Board is likewise aware of the Veteran's contentions that his residuals of right arm radiculopathy impact his daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and numbness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, and do not support ratings higher than those assigned by this decision. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Entitlement to a rating greater than 10 percent disabling for degenerative arthritis cervical spine with intervertebral disc syndrome (IVDS) prior to June 28, 2021, and greater than 20 percent disabling thereafter, In his July 2007 statement, the Veteran contended that his "pain is so bad at the base of [his] neck and lower back that [he] cannot ever get out of bed in the mornings sometimes." The Veteran's cervical spine disability is evaluated under 38 C.F.R. § 4.71a, DC 5243, which is subsumed into the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In addition, a 20 percent evaluation is assigned under the General Rating Formula for 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; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for favorable ankylosis of the entire cervical spine, a 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine, and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Repetitive, active and passive, weight-bearing and non-weight-bearing testing was completed at the August 2021 VA examination. The content of the examination fully complied with the requirements of 38 C.F.R. § 21.1032(a)(1)(i). See August 2021 VA Neck (Cervical Spine) Conditions examination report. To the extent that the VA Compensation and Pension examinations and other physical examinations discussed herein failed to record passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Because there is no indication that the structural integrity of the Veteran's cervical spine is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to record limitation of motion on passive range of motion and in non-weight-bearing is harmless error and not prejudicial to the Veteran. In addition to the August 2021 VA examination report, the Board will evaluate the Veteran's range of motion using the available measurements on active range of motion using the December 2006 and December 2013 VA examination reports. Under 38 C.F.R. § 4.7, the Veteran is entitled to the benefit of the rating criteria that will result in the higher evaluation of his disability. See 38 C.F.R. § 4.7, Higher of two evaluations. There is no evidence of incapacitating episodes, defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician," such that the application of 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, would be an available option for a potentially higher evaluation of the Veteran's cervical spine disability. See 38 C.F.R. § 4.71a. The Veteran does not meet the evaluation criteria for a rating greater than 10 percent disabling prior to June 28, 2021, or greater than 20 percent thereafter. At the December 2006 VA examination, range of motion of the neck, / cervical spine was full, including forward flexion of 45 degrees, with no tenderness, muscle spasms, or deformity noted. A February 2011 Department of Corrections treatment record reflected, "good, full range of motion of the neck. An April 2011 Department of Corrections treatment record indicated, "Patient walked in to see Mental Health without wheelchair, cane or walker, walking without any assistance, moves / sits / ambulates freely without assistance or hesitancy...Appliances not warranted." The December 2013 VA examination measured forward flexion as 35 degrees, without muscle spasm, guarding, or atrophy noted by the examiner. In a June 2014 VA treatment record, the Veteran reported "engaging in enjoyable activities (e.g., working on motorcycle) that reduced pain at times." A February 2018 VA Physical Therapy Treatment Plan Note and May 2018 VA Pain Medicine Consult record noted that the Veteran had fusion surgery in August 2017, which "helped quite a bit with neck pain" and "improved neck mobility." A September 2018 cervical spine X-ray revealed "No evidence of fracture or malalignment." An April 2019 examination noted "ROM limited by pain when looking up or laterally." A September 2019 VA treatment note reflected "slightly limited ROM with side-to-side movement." Range of motion testing at the June 2021 VA examination recorded forward flexion as 55 degrees. However, the examining physician noted muscle spasm resulting in abnormal gait or spinal contour. Application of the regular rating schedule standards is not impractical due to an "exceptional or unusual" disability. Aside from a diskectomy in November 2005 (See May 2006 Mercy Hospital Bakersfield Neurology Consultation) and again in August 2017 (See February 2018 VA Physical Therapy Treatment Plan Note) the record does not contain evidence of "frequent periods of hospitalization" or "marked interference with employment" due to the Veteran's thoracolumbar spine disability. See August 2021 VA Neck (Cervical Spine) Conditions examination report ("can't lift more than 10 pounds."). Because it is not reasonably raised from the record or from the appeal, referral for extraschedular consideration under 38 C.F.R. § 3.321 is not warranted. See 38 C.F.R. § 3.321(b)(1). In summary, a preponderance of the evidence of record indicates that the Veteran does not meet the relevant diagnostic criteria under 38 C.F.R. § 4.71a, for an evaluation greater than 10 percent prior to June 28, 2021, and greater than 20 percent thereafter. The provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 have been considered. The prohibition against the pyramiding of claims prevents a separate rating for pain, which is already contemplated in the Veteran's schedular ratings. The Veteran's disability does not present such an exceptional or unusual picture as to render the Rating Schedule impractical. Therefore, consideration for extraschedular evaluation is not for application. The Veteran is adequately compensated for the average impairment in earning capacity resulting from diseases or injuries and their residual conditions in his civilian occupation. 38 C.F.R. § 3.321. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his cervical spine disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the residuals of his cervical spine disability are more severe than is reflected in the assigned evaluation ratings. The Board is likewise aware of the Veteran's contentions that his cervical spine disability impacts his daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and weakness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations of degree of range of motion, muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or spinal contour, favorable ankylosis, and unfavorable ankylosis, is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The evidence also contemplates the Veteran's descriptions of his symptoms both at VA examinations and in treatment, including his reports of functional impairment with repeated use over time due to factors of pain, weakened movement, and lack of endurance. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The December 2006, December 2013, and June 2021 VA examination reports are the most probative evidence of record on the question of entitlement to an increased rating. The opinions were based on an extensive review of all the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and each provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the December 2006, December 2013, and June 2021 VA examiner reports are consistent with the evidence of record, including consistent forward flexion of the cervical spine greater than 30 degrees and lack of documented muscle spasm resulting in abnormal gait or spinal contour prior to June 2021. The VA examiner reports provide compelling evidence against the Veteran's claim for increase. There is no competent, credible evidence to refute the December 2006, December 2013, and June 2021 VA examination reports. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The weight of the probative evidence of record is against a finding that the Veteran is entitled to a rating greater than 10 percent disabling prior to June 28, 2021, and greater than 20 percent disabling thereafter. Consequently, additional increases are not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The November 2020 Board remand, among other development, directed that a new VA opinion be obtained as to whether the Veteran's diagnosed acquired psychiatric disability is related to his military service, to include as secondary to his service-connected disabilities. The August 2021 VA examination reports and opinion addendum provide these opinions but do not provide any rationale. Thus, the opinion is insufficient for appellate purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For this reason, the Board finds that there has not been substantial compliance with the previous Board remand directives, such that another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disability. The examiner should review the claims file to become familiar with the pertinent medical history of the Veteran. The examiner should respond to the following: Is the Veteran's depression as least as likely as not (50 percent or greater) related to an event, disease, or injury in service? Is it at least as likely as not (50 percent or greater) that his depression is either 1) proximately due to OR 2) aggravated by the Veteran's service-connected disabilities, to include due to any medications taken to treat such disabilities? The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). **If the Veteran fails to report to this examination, copies of the notices of the VA examination letters sent to the Veteran must be associated with the record. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.