Citation Nr: 21072414 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-02 377 DATE: December 3, 2021 ORDER Entitlement to an initial rating in excess of 30 percent prior to April 3, 2014, for the service-connected cervical spine disability is denied. Entitlement to a separate, initial 40 percent rating, but no higher, for right upper extremity radiculopathy of all radicular groups from February 11, 2010, to April 3, 2014, is granted. FINDINGS OF FACT 1. For the appeal period prior to April 3, 2014, the preponderance of the evidence is against finding that the Veteran's cervical spine disability manifested in ankylosis, even with consideration of painful motion, or incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least four weeks. 2. Resolving all reasonable doubt in favor of the Veteran, for the appeal period from February 11, 2010, to April 3, 2014, his service-connected cervical spine disability manifested in a neurologic impairment of the right upper extremity that resulted in disability analogous to moderate incomplete paralysis of all radicular groups in the right upper extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent prior to April 3, 2014, for the service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. From February 11, 2010, to April 3, 2014, the criteria for entitlement to a separate, initial 40 percent rating, but no higher, for right upper extremity radiculopathy of all radicular groups, associated with the service-connected cervical spine disability, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, DC 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1984 to October 2006, to include service in the Southwest Asia Theater of Operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board denied the Veteran's initial increased rating claim for his cervical spine disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and in December 2018, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the December 2017 Board decision insofar as it denied entitlement to an initial rating in excess of 10 percent for the Veteran's cervical spine disability prior to April 3, 2014. Thereafter, in July 2019 and November 2020, the Board remanded the matter to the RO for further development. As an initial matter, in an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an initial 30 percent rating for the Veteran's cervical spine disability from February 11, 2010, the date of the Veteran's service connection claim. The grant of an increased rating during an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Increased Ratings 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Staged ratings are appropriate for an increased rating claim 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. 505, 509 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board notes that in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. 1. Entitlement to an initial rating in excess of 30 percent prior to April 3, 2014, for the service-connected cervical spine disability The Veteran seeks an initial increased rating for his cervical spine disability for the appeal period prior to April 3, 2014. As the Veteran's increased rating claim arises from his initial grant of service connection, the Board will consider whether an increased rating is warranted from February 11, 2010, the date of the Veteran's service connection claim for a cervical spine disorder. In the present case, the Veteran is currently in receipt of a 30 percent rating for his cervical spine disability under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). As an initial matter, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and under both the old and new rating criteria from February 7, 2021. See 38 U.S.C. § 5110. The criteria that is more favorable to the Veteran will be applied from the effective date of the change. Relevantly, DC 5243 was revised. Prior to February 7, 2021, DC 5243 required evaluations of IVDS (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method resulted in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. As of February 7, 2021, DC 5243 requires that the DC may be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root and to assign DC 5242 for all other diagnoses. The Board will consider both the new and old regulations in this case. The Formula for IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 evaluation is warranted for unfavorable ankylosis of the cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). See also 38 C.F.R. § 4.71a, Plate V (2017). Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Pursuant to Note (1) of the General Formula for Diseases and Injuries of the Spine (General Formula), VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate DC. See 38 C.F.R. § 4.71A, DCs 5235-5243, Note (1). Therefore, determining whether separate or higher ratings should be awarded for objective neurological complications is part and parcel of the increased rating claim for the Veteran's cervical spine disability on appeal. At the outset, the Board notes that while the Veteran has submitted some private treatment records regarding his cervical spine disability, not all private treatment records have been associated with the claims file. However, as VA has provided the Veteran with the opportunity to submit and/or authorize VA to obtain identified private treatment, see e.g., January 2012 VA notification letter, the Board finds that a remand to obtain any outstanding private treatment records is unnecessary and would only further delay the Veteran's claim. Turning to the evidence of record, during the appeal period, the Veteran received private treatment for his cervical spine pain in the form of injections in his neck and chiropractic treatment. See June 2010 and December 2012 VA treatment records. In this regard, an April 2010 private chiropractic treatment record reflects that the Veteran was treated for chronic neck and shoulder pain and that while chiropractic treatment had been effective to help alleviate subjective complaints for periods of time, it had not fully alleviated the Veteran's complaints. The treatment record also indicated that the Veteran was undergoing pain management treatment, had a nerve dysfunction in the cervical spine region, and that it was likely his disability would worsen as the degeneration continued in the cervical spine. Another April 2010 private treatment record reflects that the Veteran had intense cervical region pain on a scale of seven to ten out of ten and that he demonstrated restricted range of motion upon the cervical spine to a severe degree of flexion and extension. His lateral rotation was also moderately restricted, and he was a candidate for selective nerve root blocks. In April 2010, the Veteran underwent right sided C5, C6, and C7 selective nerve root blocks. At the May 2010 VA joints examination, the Veteran reported experiencing constant neck pain and that flare-ups restricted his movements and activities during the day due to pain. Active range of motion testing revealed flexion to 50 degrees, extension to 35 degrees, left lateral flexion to 35 degrees, left lateral rotation to 55 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 60 degrees. There was no objective evidence of pain on active range of motion or following repetitive motion. There were also no additional range of motion limitations after three repetitions. Further, the Veteran did not have spinal ankylosis nor incapacitating episodes of the spine. The examiner noted that the Veteran lost no time from work during the past 12-month period due to his disability but that his cervical spine had significant effects on his occupation with pain. In June 2010, the Veteran underwent another VA examination. The June 2010 VA examiner noted that the Veteran had no changes in his history of symptoms since his last VA examination in May 2010 except for epidural injections to the neck that improved pain slightly. He was assessed with cervical and lumbar spine degenerative disc disease with neuroforaminal stenoses. Thereafter, the Veteran continued to report neck pain associated with his cervical spine disability. Specifically, in February 2012 correspondence, the Veteran reported that he had purchased special pillows and a zero-gravity chair to help temporarily relieve discomfort while sleeping and sitting. He also reported that he felt his cervical spine rating should be increased due to unfavorable ankylosis of the cervical spine. See February 2012 correspondence. A February 2013 VA treatment record further reflects that the Veteran experienced increased neck pain with neck extension. Upon examination, he had full active range of motion without pain and had mild to moderate signs and symptoms. The treatment record also indicated that 70 percent of his pain was constant neck/head stabbing while 30 percent of his pain resulted in right arm aching. In May 2013, the Veteran reported that he experienced daily, severe pain in the form of neck pain and headaches regardless of his neck's flexion or motion and that he had missed some days of work due to his disability. See May 2013 Correspondence. After the appeal period, in July 2019, the Board remanded the Veteran's claim for a VA examination and retrospective opinion because the May 2010 VA examiner did not consider the impact of the Veteran's flare-ups or attempt to quantify any additional degree of motion lost due to flares. As such, in November 2019, the Veteran was afforded another neck conditions VA examination. The examiner opined that the course of the Veteran's cervical spine disorder since onset stayed the same and found that the Veteran did not have ankylosis of the spine. However, the examiner did not provide a retrospective opinion regarding functional loss during flare ups of the cervical spine. Consequently, in November 2020, the Board again remanded the Veteran's claim for a retrospective opinion. As such, at the July 2021 VA examination, the VA examiner noted that the Veteran's course of his cervical spine disability since onset had stayed the same and manifested in sharp pain in the cervical spine. After reviewing all available records, the July 2021 VA examiner provided a retrospective opinion discussing the Veteran's functional loss during flare ups for the appeal period prior to April 3, 2014. The examiner noted that for this period of time, the Veteran experienced flare ups in daily pain due to certain movements that resulted in a 50 percent loss of range of motion. The VA examiner estimated that during flare ups, the Veteran's range of motion would result in forward flexion to 15 degrees, extension to 15 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. The examiner explained that the Veteran's flare ups occurred approximately two to three days a week and limited movements of his neck until pain receded. The examiner further noted that movement resulted in a pins and needles/hot poker sensation in the Veteran's elbow and affected his outer two fingers. In light of the above evidence and applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for the Veteran's cervical spine disability. In this regard, although the Veteran does have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. For example, none of the VA examinations of record reflect that the Veteran had incapacitating episodes of IVDS. Moreover, while the Veteran reported missing some days of work, he has not reported, nor does the evidence of record reflect, that he was prescribed bed rest by a physician for a total duration of at least 4 weeks during any 12-month period for the appeal period. Additionally, the preponderance of the evidence is also against a rating in excess of 30 percent for the cervical spine disability under the General Rating Formula as there is no evidence of record that the Veteran's cervical spine disability manifests in ankylosis of the spine. Specifically, the May 2010, June 2010, and November 2014 VA examinations reflect that the Veteran does not have ankylosis of the spine. Moreover, the VA and private treatment records also do not indicate that ankylosis, either favorable or unfavorable, was present. The Board acknowledges the Veteran's statement in February 2012 correspondence that he had unfavorable ankylosis of the cervical spine. However, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports that were recorded following physical examination of the Veteran, than to the Veteran's general belief that he has unfavorable ankylosis or is entitled to a higher rating, as the Veteran has not been shown to possess the medical training necessary to evaluate the nature and severity of his cervical disability, which is a complex medical issue involving the internal workings of the body. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37. Ultimately, on objective examination and review of the treatment records, ankylosis of the spine is not found. The Board notes that the Veteran's currently assigned 30 percent rating already contemplates additional functional loss due to pain during flare-ups of his cervical spine. See DeLuca, 8 Vet. App. at 202. In this regard, his current level of impairment is based upon the July 2021 VA examiner's retrospective finding that range of motion of the Veteran's cervical spine during flares, for the appeal period prior to April 3, 2014, resulted in cervical flexion to 15 degrees. Here, even considering the Veteran's lay reports of symptoms and noted functional loss due to pain on movement, the degree of additional limitation reflected by his statements and physical examinations would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. The May 2010 VA examination shows movement for all range of motion measurements while the July 2021 retrospective opinion, even with consideration of functional loss during flares, reflects an estimated range of motion that includes movement of the cervical spine. As such, the Board finds that even with consideration of functional loss due to pain, weakness, fatigability, or incoordination, the Veteran's disability does not rise to the level contemplated by the next-higher 40 percent rating under the General Rating Formula. Finally, the Board notes that in addition to considering the orthopedic manifestations of the Veteran's cervical spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate DC. Here, the evidence shows that for the appeal period prior to April 3, 2014, the Veteran experienced right upper extremity radiculopathy associated with his cervical spine disability. This objective neurologic abnormality will be discussed in further detail below. However, the Board finds that the evidence does not show that the Veteran had any other associated objective neurologic abnormality for this period of time as a result of his service-connected cervical spine disability. In this regard, although the evidence of record reflects that the Veteran occasionally reported headaches in relation to his neck pain, the pertinent VA examinations do not reflect that he had a diagnosed headache or migraine disability separate and distinct from his cervical spine disability. Specifically, the May 2010 VA examination is absent for any findings relating to a headache disability while the November 2014 VA examination reflects the Veteran's reports of neck aches/headaches but still indicates that the Veteran did not have any other neurologic abnormalities associated with his cervical spine disability aside from right upper extremity radiculopathy. As such, the Veteran's reports/complaints of any subjective neurologic abnormalities, to include headaches, have been considered and contemplated in the Veteran's assigned 30 percent rating for his cervical spine disability. Accordingly, the Veteran's claim for an initial rating in excess of 30 percent for his cervical spine disability for the appeal period prior to April 3, 2014, is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the claim and therefore, the doctrine is not for application. 2. Entitlement to a separate, initial 40 percent rating, but no higher, for right upper extremity radiculopathy of all radicular groups from February 11, 2010, to April 3, 2014 In connection with the Veteran's cervical spine increased rating claim, the AOJ has already awarded a separate 40 percent rating for right upper extremity radiculopathy of all radicular groups from April 3, 2014. However, the Board's review of the Veteran's cervical spine disability for the appeal period prior to April 3, 2014, also includes consideration of whether a separate rating for right upper extremity radiculopathy is warranted for any portion of the appeal period for which such radiculopathy rating has not already been awarded. Upon careful review of the evidence of record, the Board finds that the Veteran's upper extremity radiculopathy is reasonably shown to have been present since his initial service connection claim. As explained below, the Board concludes that the Veteran is entitled to a separate, initial rating of 40 percent, but no higher, for right upper extremity radiculopathy of all radicular groups from February 11, 2010, to April 3, 2014. At the outset, the Board notes that the Veteran is right-handed and, thus, the criteria for the major extremity is for application. See June 2010 VA general medical examination. In the present case, the Veteran is in receipt of a 40 percent rating for right upper extremity radiculopathy from April 3, 2014, under DC 8513, which provides the rating criteria for paralysis of all the radicular groups, and therefore, neuritis and neuralgia of all the radicular groups. Under DC 8513, mild incomplete paralysis of the affected nerves is rated 20 percent disabling for either extremity, moderate incomplete paralysis of the affected nerves is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis of the affected nerves is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, and complete paralysis of the affected nerves is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. Additionally, paralysis of the upper radicular group and the middle radicular group are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DCs 8510 and 8511, respectively. Under the criteria for both, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. For the middle radicular group, complete paralysis with adduction, abduction and rotation of the arm, flexion of the elbow and extension of the wrist lost or severely affected is rated as 70 percent for the major extremity and 60 percent for the minor extremity. For the upper radicular group, complete paralysis with all shoulder and elbow movements lost or severely affected, but the hand and wrist movements not affected, are rated 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. 38 C.F.R. § 4.124a, note following DC 8719. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. See the note preceding DC 8510. The terms "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. Turning to the evidence of record, throughout the appeal period, the Veteran has reported radiating right arm pain associated with his cervical spine disability. For example, a February 2010 VA treatment record reflects that the Veteran reported radiating pain from his neck/right shoulder down to his right elbow while a February 2010 private treatment record reflects that the Veteran complained of right arm pain, weakness in the right upper extremity, and periodic paresthesias. Upon physical examination, he exhibited some subtle atrophy about the right triceps as compared to the left. See February 2010 private treatment record. His reflexes were also significant for absent triceps reflex on the right and he had 4/5 motor strength as compared to the left. He was assessed with having clinical evidence of some motor weakness and alternation of reflexes affecting the right upper extremity. Id. An April 2010 private treatment record further reflects that the Veteran reported pain and weakness of the right upper extremity with periodic numbness, tingling, and sharp shooting pains with concomitant weakness. Upon examination of his right upper extremity, his motor strength was 4/5, bicep reflex 2/4, triceps reflex was absent on the right, and brachioradialis reflex was 1/4. He was assessed with cervical pain with right upper extremity radiculitis and concomitant weakness. Thereafter, the May 2010 VA joints examination reflects that although the Veteran underwent epidural nerve blocks in April 2010, he continued to experience radicular symptoms with numbness on the right arm. He was noted as experiencing sharp radiating pain to the right arm and elbow. Physical examination revealed normal motor and sensory testing. The VA examiner noted that degenerative arthritis of the cervical spine can lead to symptoms of radiculopathy, which is pinching of the nerve resulting from bulging neural foraminal narrowing and that the Veteran had these findings on his magnetic resonance imaging (MRI). The June 2010 VA general medical examination also indicates the Veteran had normal reflex, sensory, and motor testing upon examination without any muscle atrophy. A June 2010 VA treatment record reflects that the Veteran received three cervical injections, which he reported relieved the pain in his right shoulder blade and down the right medial arm and elbow, but that he still experienced numbness in his right arm when he extended his head. A January 2012 VA treatment record also reflects that the Veteran reported experiencing pain in his right arm from his neck injury and that he had right arm weakness/muscular atrophy. A February 2013 VA treatment record further indicates that the Veteran experienced right arm aching and that sometimes four and five digits go numb. The record also reflects that the Veteran experienced radiation with the entire back of his neck, back of his head, and right arm. Shortly after the appeal period, at the November 2014 VA neck conditions examination, the Veteran was assessed with moderate right upper extremity radiculopathy that involved the upper radicular group and middle radicular group. Specifically, he was found to have moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his right upper extremity. Examination revealed normal muscle strength, reflex, and sensory, testing. Given the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to a separate, initial rating of 40 percent for right upper extremity radiculopathy of all radicular groups is warranted for the appeal period prior to April 3, 2014. As noted above, the Veteran is already in receipt of a 40 percent rating for his right upper extremity radiculopathy of all radicular groups from April 3, 2014. However, the Board finds that the Veteran's radiculopathy and resulting impairment was present as early as February 11, 2010. In this regard, the Veteran has consistently reported substantially the same symptoms (e.g., numbness, paresthesias, and weakness) concerning radiating pain into his right arm prior to and since April 3, 2014. Indeed, he was assessed with cervical pain with right upper extremity radiculitis and concomitant weakness in an April 2010 private treatment record and complained of radiating pain prior to that date as well. With allowances for the fact that radiculopathy symptoms may be variable on any given day, the fact that the Veteran reported significant radiculopathy symptoms in his right upper extremity as early as February 11, 2010, and that the VA diagnosis of right upper extremity radiculopathy of the middle and upper radicular groups appears to have been based on substantially similar symptomatology that was reported by the Veteran, and generally diagnosed as right upper extremity radiculitis, in the prior years, the Board finds that the Veteran's right upper extremity radiculopathy of all radicular groups is essentially shown to have begun since the Veteran's initial claim. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that a separate, initial 40 percent rating, but no higher, is warranted from February 11, 2010, the effective date of service connection for the Veteran's cervical spine disability, for right upper extremity radiculopathy of all radicular groups. The Board does not, however, find that a higher rating is warranted at any point during this appeal period as the evidence does not reflect "severe" incomplete paralysis of all radicular groups or for any specific impacted nerves/radicular groups. In this regard, while some private treatment records reflect that the Veteran had subtle muscle atrophy or reduced reflex testing, his motor functioning remained largely intact. Moreover, the May 2010 and June 2010 VA examinations reflect normal motor and sensory testing upon examination. In addition, shortly after the appeal period, the November 2014 VA examiner assessed the Veteran's radiculopathy as moderate in nature. The Board notes that VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, with consideration of the Veteran's lay statements as well as the objective clinical features and evaluations of the Veteran's disability, a rating in excess of 40 percent is not warranted at any point during the appeal period. The Board has also considered whether alternative and/or separate additional ratings may be warranted due to the Veteran's impairment of multiple radicular groups. However, 38 C.F.R. § 4.124a provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, considered in radicular group ratings. See the note following DC 8719. As such, the Board finds that the Veteran's disability is most appropriately evaluated under DC 8513 (all radicular groups) as this DC contemplates multiple nerve injuries affecting the Veteran's right arm, wrist, and hand. Additionally, the Board finds that assigning separate ratings under DC 8510 and DC 8511 for the Veteran's right upper extremity radiculopathy would constitute impermissible pyramiding as the Veteran's injuries to the upper and middle radicular groups all contribute to the same and overlapping functional impairment of the right upper extremity consisting of pain, paresthesias and/or dysesthesias, numbness, and sensory loss. The Board notes that VA regulations prohibit evaluation of the same disability or the same or overlapping symptomatology under different DCs (which is called "pyramiding"). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the Veteran's symptom cluster and functional effects of disability overlap and do not constitute separate and distinct manifestations of disabilities warranting separate ratings under DCs. The Board has also considered whether the Veteran is entitled to a higher or separate rating under any other applicable DC referable to the nerves. However, the Board does not find that a higher rating is warranted under DC 8510 or DC 8511, if the Veteran was rated under one of these DCs instead of DC 8513. In this regard, the Veteran's impairment would have to be severe under any of the two DCs to merit a higher rating, and the November 2014 VA examiner found that the impairment of the upper and middle radicular groups was moderate and also characterized the Veteran's signs and symptoms as moderate. As such, the assignment of multiple and/or separate DCs in this case is not warranted. In sum, after resolving all reasonable doubt in favor of the Veteran, a separate, initial rating of 40 percent, but no higher, for right upper extremity radiculopathy of all radicular groups from February 11, 2010, to April 3, 2014, is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.