Citation Nr: 21072535 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-17 196 DATE: December 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for chronic low back pain and osteoarthritis with degenerative disc disease at L4-L5 and L5-S1 (back disability) prior to March 8, 2017, in excess of 40 percent from March 8, 2017 to November 13, 2019, and in excess of 10 percent from November 13, 2019 is denied. Entitlement to a rating in excess of 10 percent for degenerative disc disease with broad based disc rupture at C5-6 with chronic pain (neck disability) prior to March 8, 2017, in excess of 20 percent from March 8, 2017 to November 13, 2019, and in excess of 10 percent from November 13, 2019 is denied. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is denied. Entitlement to a compensable rating for epicondylitis of the right elbow (right elbow disability) is denied. FINDINGS OF FACT 1. Prior to March 8, 2017, and from November 13, 2019, the symptoms of the Veteran's back disability did not more nearly approximate forward flexion greater than 30 degrees, but not greater than 60 degrees; combined range of motion not greater than 120 degrees; or muscle spasm or guarding. 2. From March 8, 2017 to November 13, 2019, the symptoms of the Veteran's back disability did not more nearly approximate forward flexion at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. Prior to March 8, 2017, and from November 13, 2019, the symptoms of the Veteran's neck disability did not more nearly approximate forward flexion 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. 4. From March 8, 2017 to November 13, 2019, the symptoms of the Veteran's neck disability did not more nearly approximate forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. 5. As of January 31, 2017, the Veteran's left upper extremity radiculopathy has been productive of no more than mild incomplete paralysis affecting the left upper radicular nerve group. 6. The Veteran's epicondylitis of the right elbow does not have any objective symptoms, and subjective pain is related to non-service-connected rheumatoid arthritis. CONCLUSIONS OF LAW 1. The criteria for a higher rating for a back disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 2. The criteria for a higher rating for a neck disability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 3. The criteria for a rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510 (2020). 4. The criteria for a compensable rating for epicondylitis of the right elbow have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5207 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from February 1965 to January 1994 with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the appeal for further evidentiary development. Specifically, the Board instructed that current treatment records should be obtained, and the Veteran should be provided with current VA examinations. The appropriate records were obtained, and he underwent VA examinations in November 2019. The Board is therefore satisfied that the instructions in its January 2019 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). In a June 2020 rating decision, the RO granted increased, staged ratings for the back and neck disabilities. As the maximum benefits available have not been granted, the matters remain on appeal. The June 2020 rating decision also awarded a separate, 20 percent rating for left upper extremity radiculopathy associated with his neck disability, effective January 31, 2017. As such separate rating was assigned pursuant to Note (1) of General Rating Formula for Diseases and Injuries of the Spine under which his service-connected neck disability is rated, the propriety of the assigned effective date and rating for radiculopathy of the left upper extremity is properly before the Board. The case now returns for further appellate review. 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 percentages are based on the average impairment of earning capacity as a result of 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. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). "The question of whether a particular medical issue is beyond the competence of a layperson including both claimants and Board members must be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In Dorland's Illustrated Medical Dictionary 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. Because there is no indication that the structural integrity of the Veteran's spine or elbow 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 any failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. Finally, the Board notes that during the pendency of the appeal VA amended some of its criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. 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. Therefore, the Board must consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. With respect to the disabilities on appeal, the Board finds that the relevant amendments do not change how this Veteran's disabilities are rated. The Board has reached this conclusion because it finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021. Finally, a claim for a TDIU is raised by the record in an increased rating claim when the Veteran asserts unemployability due to the service-connected disability under consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted that he is unemployable due to his service-connected back, neck, or elbow disabilities, and no examiner as opined that the Veteran is precluded from employment based on the disabilities on appeal. Therefore, a TDIU is not raised by the record and will not be addressed further. 1. Back disability Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243) (General Rating Formula), or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243) (IVDS Rating Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; 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. Id. A 20 percent disability rating is assigned for forward flexion greater than 30 degrees, but not greater than 60 degrees; combined range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent 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 is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A February 2012 private treatment record noted low back pain and neck pain with finding on thoracic MRI of intrathoracic spinal cyst. The Veteran reported relenting and remitting low back pain depending on his activity levels. The Veteran worked as a technician. On inspection, there was no spasm, atrophy, or fasciculations seen in lower back. Straight leg raising was negative. On motor examination, muscle tone was normal and strength was preserved. An x-ray revealed a small focal tear with minimal disc bulge at the L5-S1 level and diffuse mild degenerative disc disease most pronounced at the L5-S1 level. At a February 2016 VA examination, the Veteran reported pain in the lower back when he pulled weeds in his lawn and when he lifted anything over 20 pounds. Pain radiated to both legs to the feet. The Veteran did not report flare-ups or functional loss. Range of motion testing revealed forward flexion limited to 80 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 25 degrees. There was no pain noted on examination, including during weight-bearing or on palpation of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, reasoning that there was no objective evidence in the record or when reported symptoms were incongruent to findings on imaging and clinical examination. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength and reflexes were normal. Sensory examination was normal, and straight leg raising test was negative bilaterally. There was no ankylosis of the spine. The Veteran did not have any other neurological abnormalities or findings related to a back condition. He did not have IVDS. The Veteran did not use any assistive devices. The examiner opined that the Veteran's back condition did not impact his ability to work. At a March 8, 2017 VA examination, the Veteran endorsed flare-ups and functional loss of the thoracolumbar spine. Range of motion testing revealed forward flexion limited to 30 degrees. Extension and bilateral lateral flexion and rotation were all limited to 10 degrees. Pain was noted on exam in all planes but did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or soft tissue of the lower lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether flare-ups or pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, reasoning that the Veteran was not currently having a flare-up nor was the joint being used repetitively over time on examination. The Veteran did not have guarding or muscle spasm of the back. Additional factors contributing to disability included disturbance of locomotion and interference with standing. Muscle strength testing was normal in the lower extremities, except that great toe extension was 3/5 (active movement against gravity). Reflexes were normal. Sensation was decreased in the foot/toes. Straight leg raising test was negative. The examiner opined that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner noted peripheral neuropathy (especially big toes) was possibly related to his pre-diabetes or his lymphoma. The Veteran did not have ankylosis or IVDS of the thoracolumbar spine. The Veteran occasionally used a brace. The examiner opined that the Veteran's back condition limited strenuous work but should not preclude attempt at sedentary work. The examiner advised the Veteran to avoid climbing, bending, stooping, crawling or prolonged standing/walking. At a November 13, 2019 VA examination, the Veteran reported back pain at a level of 7 to 8 each day. The Veteran reported flare-ups of rheumatoid arthritis with the cold weather. The Veteran reported functional loss, described as having a hard time carrying a 40-pound bag of salt for the water softener. He also reported problems climbing ladders or stairs. Range of motion testing revealed forward flexion to 80 degrees, extension to 20 degrees, and bilateral lateral flexion and rotation limited to 30 degrees each. Pain was noted on exam in forward flexion and extension but did not result in/cause functional loss. There was no evidence of pain with weight bearing, nonweight bearing, or on passive range of motion. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after flare-ups or repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing flare-ups or functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups, reasoning that the Veteran had flares due to rheumatoid arthritis where all of his body hurt, and he conflated all of his medical problems. The Veteran did not have guarding or muscle spasm of the back. Muscle strength was normal. Reflexes were absent in the ankles. Sensation was normal and straight leg raising test was negative. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis or IVDS of the spine. After review of the competent and probative evidence, the Board finds that the weight of the evidence does not support a finding that the Veteran's disability picture is more nearly approximated by the next-higher disability rating at any time during the appeal. Prior to March 8, 2017, range of motion did not more nearly approximate greater than 30 degrees but not greater than 60 degrees, or a combined range of motion not greater than 120 degrees. Rather, the February 2016 examination revealed forward flexion limited to 80 degrees, and a combined range of motion of 215 degrees. The Board has considered functional loss caused by pain or other factors, but notes that no objective evidence of pain was shown on exam, including during weight-bearing. There is also no evidence during this period that demonstrates range of motion would more nearly approximate the criteria for a 20 percent rating during repetitive use over time or flare-ups. Indeed, the Veteran did not report flare-ups or functional loss at the February 2016 VA examination. Finally, there is no showing of muscle spasm, guarding, or ankylosis. Consequently, a rating in excess of 10 percent prior to March 8, 2017 is not warranted. Between March 8, 2017 and November 13, 2019, there was no showing of ankylosis of the thoracolumbar spine. See, e.g., March 2017 VA examination report. Consequently, a rating in excess of 40 percent during this period is not warranted. Since November 13, 2019, range of motion did not more nearly approximate greater than 30 degrees but not greater than 60 degrees, or a combined range of motion not greater than 120 degrees. Rather, the November 2019 VA examination report revealed forward flexion limited to 80 degrees and a combined range of motion of 220 degrees. The Board has considered functional loss due to pain or other factors, but notes that the November 2019 VA examiner specifically opined that the pain on exam in forward flexion and extension did not result in/cause functional loss. There was also no evidence of pain with weight bearing, nonweight bearing, or on passive range of motion. Although the Veteran reported flare-ups and functional loss, the Veteran related his pain to his non-service-connected rheumatoid arthritis. The examiner further opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Finally, there is no showing of muscle spasm, guarding, or ankylosis. Consequently, a rating in excess of 10 percent is also not warranted from November 13, 2019. The Board recognizes that the February 2016 and March 2017 VA examiners did not adequately estimate functional impairment in terms of range of motion during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The November 2019 VA examiner, however, explained that such an estimation was impossible because his increased symptoms at such times were primarily the result of his non-service-connected rheumatoid arthritis. The Board finds this explanation adequate under Sharp because it is specific to the Veteran's circumstances, and there is no indication that such an explanation is not applicable to the entire period on appeal. Remand for a further Sharp estimation is therefore not necessary. The Board has also considered whether the Veteran is entitled to an increased evaluation for his back disability under the regulations for IVDS. The medical evidence does not demonstrate findings of IVDS, and there is no lay or medical evidence of incapacitating episodesas defined by regulationduring any 12-month period. Thus, an increased rating is not warranted under the rating criteria for IVDS. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; see Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Finally, the Board has considered whether a separate evaluation is warranted for any neurological component of the Veteran's back disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The record reflects complaints of pain radiating to the lower extremities. However, there is no objective evidence of radiculopathy in the lower extremities due to the Veteran's low back pain, or other evidence of neurologic abnormalities related to the lumbar spine. Indeed, all examiners definitively opined, following testing, that the Veteran did not have radiculopathy or a neurological disorder related to the low back. Consequently, a separate evaluation is not warranted for any neurological component of the Veteran's back disability. 2. Neck disability As with the thoracolumbar spine, disabilities of the cervical spine are rated under the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 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, the combined range of motion of the cervical spine not greater than 170 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A rating of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the cervical spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent 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 is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During a February 2016 VA examination, the examiner diagnosed degenerative disc disease of the cervical spine. The Veteran reported pain in the back of the neck and tingling all over his body. He did not report flare-ups or functional loss. Range of motion testing revealed forward flexion to 45 degrees, extension and right lateral flexion to 40 degrees, left lateral flexion to 45 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 70 degrees. There was no pain noted on exam, including during weight-bearing and on palpation of the cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, reasoning that there was no objective evidence in the record or when reported symptoms were incongruent to findings on imaging and clinical examination. The Veteran did not have localized tenderness, guarding, or muscle spasm of the cervical spine. Muscle strength, reflexes, and sensation was normal. The Veteran did not have ankylosis of the spine, IVDS, or neurological abnormalities related to the cervical spine. He did not use assistive devices. The examiner stated that the Veteran's subjective complaints during the examination appeared out of proportion to objective exam findings. The examiner opined that the Veteran's neck disability did not affect his ability to work. At a March 8, 2017 VA examination, the Veteran endorsed flare-ups and functional loss of his cervical spine. Range of motion testing revealed forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. Pain was noted on exam in all planes but did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joints or soft tissue of the cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether flare-ups or pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, reasoning that the Veteran was not currently having a flare-up nor was the joint being used repetitively over time on examination. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing was normal. The Veteran's deep tendon reflexes in his biceps, triceps, and brachioradialis were hypoactive (1+). Sensory examination was normal. The examiner opined that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have any neurologic abnormalities related to a cervical spine condition. He did not have IVDS of the cervical spine. He occasionally used a brace. The examiner opined that the Veteran's neck condition limited strenuous work but would not preclude attempt at sedentary work. The examiner advised the Veteran to avoid prolonged overhead use. At a November 13, 2019 VA examination, the Veteran reported neck pain most days. He stated that he had pain when turning to look behind him when driving. The Veteran did not report flare-ups of the cervical spine. Functional loss included the pain while driving, and the Veteran had to be careful about what type of pillow he used. Range of motion testing revealed forward flexion and extension limited to 35 degrees, right and left lateral flexion limited to 40 degrees, and right and left lateral rotation limited to 70 degrees. Pain was noted on exam but did not result in/cause functional loss. There was no evidence of pain with weight bearing, nonweight bearing, on passive range of motion testing, or on palpation of the joint. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength and reflexes were normal. Sensation was decreased in the hand/fingers. The examiner found mild radicular pain in the left upper extremity involving the left upper radicular nerve group. There was no ankylosis of the spine. The Veteran did not have other neurologic abnormalities or IVDS. Due to the Veteran's cervical spine, he could not do heavy lifting. After review of the competent and probative evidence, the Board finds that the weight of the evidence does not support a finding that the Veteran's disability picture is more nearly approximated by the next-higher disability rating at any time during the appeal. Prior to March 8, 2017, the evidence of record does not more nearly approximate forward flexion greater than 15 degrees but not greater than 30 degrees or a combined range of motion less than 170 degrees. Rather, range of motion testing during this period reflected forward flexion to 45 degrees and a combined range of motion of 300 degrees. The Board has considered functional loss caused by pain or other factors, but notes that no objective evidence of pain was shown on exam, including during weight-bearing. There is also no evidence during this period that demonstrates range of motion would more nearly approximate the criteria for a 20 percent rating during repetitive use over time or flare-ups. Indeed, the Veteran did not report flare-ups or functional loss at the February 2016 VA examination. There is no showing of muscle spasm, guarding, or ankylosis. Consequently, a rating in excess of 10 percent prior to March 8, 2017 is not warranted. From March 8, 2017 to November 13, 2019, the evidence of record does not more nearly approximate forward flexion of 15 degrees or less, or favorable ankylosis of the cervical spine. Rather, the medical evidence during this period revealed forward flexion limited to 30 degrees. The Board has considered functional loss due to pain or other factors, but notes that the March 2017 VA examiner opined that pain noted on exam did not result in/cause functional loss. There was also no evidence of pain with weight bearing or loss of range of motion after three repetitions. Although the Veteran endorsed flare-ups, there is no indication in the record that a flare-up would further reduce the Veteran's forward flexion to 15 degrees. Furthermore, there is no indication of ankylosis. Consequently, a rating in excess of 20 percent from March 8, 2017 to November 13, 2019 is not warranted. From November 13, 2019, the evidence of record does not more nearly approximate forward flexion greater than 15 degrees but not greater than 30 degrees or a combined range of motion less than 170 degrees. Rather, range of motion testing during this period reflected forward flexion to 35 degrees and a combined range of motion of 290 degrees. The Board has considered functional loss due to pain or other factors, but notes that the February 2019 VA examiner observed that pain did not result in/cause functional loss. There was also no evidence of pain with weight bearing, nonweight bearing, or on passive range of motion testing. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. Further, the Veteran did not report flare-ups of the cervical spine. Finally, there is no showing of muscle spasm, guarding, or ankylosis. A rating in excess of 10 percent from November 13, 2019 is therefore not warranted. The Board has also considered whether the Veteran is entitled to an increased evaluation for his neck disability under the regulations for IVDS. The medical evidence does not demonstrate findings of IVDS, and there is no lay or medical evidence of incapacitating episodesas defined by regulationduring any 12-month period. Thus, an increased rating is not warranted under the rating criteria for IVDS. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; see Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board recognizes that the March 2017 VA examiner did not adequately estimate functional impairment in terms of range of motion during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). The November 2019 VA examiner, however, explained that such an estimation was impossible with respect to the thoracolumbar spine because his increased symptoms at such times were primarily the result of his non-service-connected rheumatoid arthritis. As articulated by the examiner, this explanation, if accepted, is equally applicable to the Veteran's cervical spine disability. Moreover, it is consistent with the explanation offered with respect to repeated use over time by the February 2016 examiner, who found that an estimation was impossible because treatment records indicated that the Veteran's clinical findings and imaging studies were inconsistent with his subjective reports of pain. The Board finds these explanations adequate under Sharp because they are specific to the Veteran's circumstances, and there is no indication that such explanations are not applicable to the entire period on appeal. Remand for a further Sharp estimation is therefore not necessary. 3. Left upper extremity radiculopathy The Veteran is currently in receipt of a 20 percent rating for radiculopathy of the left upper extremity, manifested by paralysis of the upper radicular nerve group, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Veteran has been variously noted to be right-handed, left-handed, and ambidextrous. As such, affording all doubt to the Veteran, the Board will analyze under the criteria for the dominant extremity. See 38 C.F.R. § 4.69. Under this code, a 20 percent rating is warranted for mild incomplete paralysis, a 40 percent rating is warranted for moderate incomplete paralysis, a 50 percent rating is warranted for severe incomplete paralysis, and a 70 percent rating is warranted for complete paralysis. Complete paralysis of the upper radicular group is present when all shoulder and elbow movements are lost or severely affected, and hand and wrist movements are not affected. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. With regard to the 20 percent rating assigned for left upper extremity radiculopathy, the Board notes that a January 31, 2017 private treatment record reflects an initial diagnosis of mild cervical radiculopathy. Although radiculopathy was not shown at the March 2017 VA examination, the February 2019 VA examiner diagnosed mild radiculopathy of the left upper extremity. During that examination, the Veteran reported mild pain in the left upper extremity, and sensory examination revealed diminished sensation in the left hand/fingers. Based on the foregoing, the Board finds that a rating in excess of 20 percent for left upper extremity radiculopathy is not warranted, as there is no evidence during the appeal that the radiculopathy has been more than mild in severity. Furthermore, there is no evidence that radiculopathy was diagnosed prior to January 31, 2017. 4. Right elbow disability The Veteran is currently in receipt of a 0 percent rating for epicondylitis of the left elbow. This rating is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5207. The Veteran has been variously noted to be right-handed, left-handed, and ambidextrous. As such, affording all doubt to the Veteran, the Board will analyze under the criteria for the dominant extremity. See 38 C.F.R. § 4.69. Under 38 C.F.R. § 4.71a, Diagnostic Code 5207, extension of the forearm limited to 45 degrees warrants a 10 percent rating. Extension limited to 75 degrees warrants a 20 percent rating. Extension limited to 90 degrees warrants a 30 percent rating. Extension limited to 100 degrees warrants a 40 percent rating. Extension limited to 110 degrees warrants a 50 percent rating. Alternative and additional Diagnostic Codes for the elbows are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5205, favorable ankylosis of the elbow at an angle between 90 and 70 degrees is rated at 40 percent. Intermediate ankylosis of the elbow at an angle of more than 90 degrees or between 70 and 50 degrees is rated at 50 percent. Unfavorable ankylosis of the elbow at an angle of less than 50 degrees or with complete loss of supination or pronation is rated at 60 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5206, a noncompensable rating is warranted for flexion of the forearm limited to 110 degrees. Flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. Flexion limited to 70 degrees warrants a 30 percent rating. Flexion limited to 55 degrees warrants a 40 percent rating. Flexion limited to 45 degrees warrants a 50 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5208, flexion of the forearm limited to 100 degrees and extension of the forearm limited to 45 degrees warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5209, joint fracture of the elbow with marked cubitus varus or cubitus valgus deformity or with ununited fracture of the head of the radius is rated at 20 percent. Flail joint is rated at 60 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5210, nonunion of the radius and ulna with flail false joint is rated at 50 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5211, malunion of the ulna with bad alignment is rated at 10 percent. Nonunion in the lower half of the ulna is rated at 20 percent. Nonunion in the upper half of the ulna with false movement but without loss of bone substance or deformity is rated at 30 percent. Nonunion in the upper half of the ulna with false movement, loss of an inch or more of bone substance, and marked deformity is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5212, malunion of the radius with bad alignment is rated at 10 percent. Nonunion in the upper half of the radius is rated at 20 percent. Nonunion in the lower half of the radius with false movement but without loss of bone substance or deformity is rated at 30 percent. Nonunion in the lower half of the radius with false movement, loss of an inch or more of bone substance, and marked deformity is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5213, limitation of supination to 30 degrees or less is rated at 10 percent. Limitation of pronation with motion lost beyond the last quarter of the arc and the hand not approaching full pronation is rated at 20 percent. Limitation of pronation with motion lost beyond the middle of the arc is rated at 30 percent. Loss of supination and pronation due to bone fusion with the hand fixed near the middle of the arc or in moderate pronation is rated at 20 percent. Loss of supination and pronation due to bone fusion with the hand fixed in full pronation is rated at 30 percent. Loss of supination and pronation due to bone fusion with the hand fixed in supination or hyperpronation is rated at 40 percent. At a February 2016 VA examination, the Veteran reported that his elbow hurt. He reported pain when he lifted weight above his head or when lifting something off the floor. The Veteran reported that he was ambidextrous but wrote with his right hand. He did not report flare-ups or functional loss. Range of motion was normal. There was no pain noted on examination, including during weight-bearing or on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, reasoning that there was no objective evidence in the record or when reported symptoms were incongruent to findings on imaging and clinical examination. Muscle strength was normal. The Veteran did not have flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. Special tests for lateral and medial epicondylitis to the right elbow were negative. The examiner opined that the Veteran's epicondylitis did not affect his ability to work. At a November 2019 VA examination, the examiner diagnosed osteoarthritis of the right elbow. The Veteran reported pain in bilateral upper extremities. He did not have pain specific to the elbow joint on examination. The Veteran reported that his arms hurt due to rheumatoid arthritis, and not due to epicondylitis. He was noted to be left hand dominant. The Veteran did not report flare-ups or functional loss. Range of motion testing was normal for both elbows. There was no pain noted on exam, including during weight and non-weight bearing, in passive range of motion, and on palpation. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. He was not being examined immediately after repetitive use over time, and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was normal. There was no ankylosis. The examiner opined that the Veteran's epicondylitis did not affect his ability to work. Based on the foregoing, the Board finds that a compensable rating for epicondylitis is not warranted at any time during the appeal. Although the Veteran complained of pain, neither VA examination showed limitation of motion or functional impairment, and both examiners opined that the Veteran's elbow disability did not impact his ability to work. Moreover, the Veteran himself attributed his subjective pain was due to his non-service-connected rheumatoid arthritis, consistent with the examiner's findings. There was no evidence of any malunion or nonunion of the radius or ulna, or any other symptoms ratable under alternate Diagnostic Codes for the elbow or forearm. Under these circumstances, there no basis for a compensable evaluation for the Veteran's right elbow disability. The appeal for a higher rating is therefore denied. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.