Citation Nr: 21074484 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-45 988 DATE: December 15, 2021 ORDER The issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left ankle disability is dismissed. Entitlement to service connection for adjustment disorder with anxiety and depressed mood, chronic (previously claimed as for posttraumatic stress disorder (PTSD)) is dismissed. Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to a disability rating in excess of 10 percent for a cervical spine disability is denied. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity is denied. FINDINGS OF FACT 1. A September 2021 rating decision granted service connection for a left ankle disability and adjustment disorder with anxiety and depressed mood; accordingly, there is no justiciable issue before the Board. 2. Throughout the period on appeal, the Veteran's right shoulder disability was manifested by pain, swelling, tenderness, and flexion and abduction limited to 90 degrees, at worst, with no objective evidence of ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. 3. Throughout the period on appeal, the Veteran's cervical spine disability was manifested by pain, tenderness, forward flexion limited to 40 degrees, at worst, and combined range of motion limited to 225 degrees, at worst, with no objective evidence of guarding, muscle spasm, ankylosis, or intervertebral disc syndrome with acute signs and symptoms. 4. Throughout the period on appeal, the Veteran's radiculopathy of the right upper extremity is most appropriately characterized as mild incomplete paralysis of the upper radicular group. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the claims for service connection for a left ankle disability and adjustment disorder with anxiety and depressed mood because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. 2. Throughout the period on appeal, the criteria for a disability rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 3. Throughout the period on appeal, the criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. Throughout the period on appeal, the criteria for an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8510 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in January 2021. A transcript is of record. The Board remanded this case in April 2021 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In the April 2021 Board remand, the Board directed the RO to request from the Veteran information as to any outstanding private treatment records relevant to the claims on appeal, to include chiropractic records. In order to effectuate that request, the RO sent the Veteran a May 2021 development letter requesting that he complete and return an enclosed VA Forms 21-4142 and 21-4142a and noting that the Veteran had indicated outstanding private treatment records, to include chiropractic records. The Veteran did not respond to this development letter. Given the decision by the Veteran not to participate in any further development of his claim, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. The issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for a left ankle disability is dismissed. 2. Entitlement to service connection for adjustment disorder with anxiety and depressed mood, chronic (previously claimed as for (PTSD) is dismissed. As a general matter, the grant of a claim of service connection constitutes an award of the full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. The Veteran's claims for service connection for a left ankle disability and PTSD were remanded by the Board in April 2021. In a September 2021 rating decision, the Veteran was granted service connection for a left ankle disability and adjustment disorder with anxiety and depressed mood. As these claims have been resolved by full grant of benefits, they are no longer in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). As such, there is no justiciable issue before the Board and the appeals are dismissed for lack of subject matter jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.20, 19.22, 20.104, 20.903. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Further, under 38 C.F.R. § 4.45, consideration must be given to weakened movement, premature or excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). Moreover, the intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 1. Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is denied. The Veteran's right shoulder tendonitis is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board notes that the schedular criteria for rating the shoulder have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). While the amendment changed the language contained in Diagnostic Code 5201, these changes simply clarified that loss of motion includes flexion or abduction and provides a specific range of motion measurements for the ratings (i.e., midway between side and shoulder level defined as 45 degrees, at shoulder level defined as 90 degrees). As the amendment did not substantively change the rating criteria utilized in rating the Veteran's right shoulder disability, the Board will not address the amendment further herein. With respect to disabilities of the shoulder, 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 set forth the relevant provisions. However, in this case, the evidence does not demonstrate ankylosis of the shoulder (Diagnostic 5200), other impairment of the humerus (Diagnostic Code 5202) or impairment of clavicle or scapula (Diagnostic Code 5203), thus, the diagnostic codes pertaining to such impairments are not applicable. Handedness for the purpose of a dominant extremity rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the evidence, to include VA examinations of record, shows that the Veteran is right-handed. Consequently, for rating purposes, the right shoulder is the major upper extremity. Prior to February 7, 2021, Diagnostic Code 5201 for limitation of motion of the arm, pertinent to the major upper extremity, a minimum 20 percent rating is assigned for limitation of motion of the arm at shoulder level. A 30 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level. A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from side. Effective February 7, 2021, Diagnostic Code 5201 for limitation of motion of the arm, pertinent to the major upper extremity, a minimum 20 percent rating is assigned for limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is assigned for limitation of motion of the arm midway between side and shoulder level (flexion and/abduction limited to 45 degrees). A 40 percent rating is assigned for limitation of motion of the arm flexion and/or abduction limited to 25 degrees from side. Normal range of motion of the shoulder is from 0 to 180 degrees of flexion, from 0 to 180 degrees of abduction, and from 0 to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. In a September 2015 VA examination, the Veteran reported constant right shoulder pain with swelling and popping. He also reported flare ups that occurred three to four times a week lasting minutes to hours. His reported functional loss included difficulty with lifting and overhead work. Initial range of motion testing showed flexion to 100 degrees, abduction to 90 degrees, external rotation to 45 degrees, and internal rotation to 75 degrees. The abnormal range of motion itself contributed to functional loss, specifically difficulty with lifting and overhead work. There was pain on all planes of motion which resulted in functional loss. There was no evidence of pain with weight bearing or crepitus. There was objective evidence of tenderness to palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time or during a flare up and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no reduction in muscle strength, muscle atrophy, ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. Occupational impairment included difficulty with overhead work. In the December 2017 RO hearing, the Veteran reported right shoulder pain that radiated down his fingers. His condition worsened in the cold. In a February 2018 VA examination, the Veteran reported pain with weather changes, carrying, and lifting. He did not report flare ups. Initial range of motion testing showed flexion to 95 degrees, abduction to 85 degrees, external rotation to 50 degrees, and internal rotation to 75 degrees. The abnormal range of motion itself contributed to functional loss, specifically pain with raising arms and lifting overhead. There was pain on all planes of motion which did not result in functional loss. There was no evidence of pain with weight bearing or crepitus. There was objective evidence of localized tenderness or pain on palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no reduction in muscle strength, muscle atrophy, ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. Occupational impairment included pain with raising his arms over his head resulting in inability to do work overhead. There was objective evidence of pain on passive range of motion testing and with non-weight bearing. In the January 2021 hearing, the Veteran reported constant right shoulder pain. He stated that he had difficulties putting his truck in gear and opening soda due to his right shoulder pain. In a September 2021 VA examination, the Veteran reported right shoulder pain with decreased range of motion. He did not report flare ups. His reported functional loss included pain with lifting and inability to do overhead activity. Initial range of motion testing showed flexion to 100 degrees, abduction to 100 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. The abnormal range of motion itself contributed to functional loss, specifically inability to reach above head. There was pain on all planes of motion which resulted in functional loss (inability to reach above head). There was no evidence of pain with weight bearing. There was objective evidence of crepitus and localized tenderness or pain on palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time, but the examiner found that pain significantly limited functional ability with repeated use over time. The estimated range of motion after repeated use over time was flexion to 90 degrees, abduction to 90 degrees, external rotation to 50 degrees, and internal rotation to 50 degrees. There was no reduction in muscle strength, muscle atrophy, ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. Occupational impairment included pain with any work-related lifting and inability to do overhead activity. There was objective evidence of pain on passive range of motion testing, but not with non-weight bearing. Passive range of motion was the same as active range of motion. According to post-service private treatment records, the Veteran had right shoulder pain aggravated by lifting and movement and some crepitus. He had pain with motion. In March and April 2016, his flexion ranged from 140 to 170, abduction from 90 to 150, and internal and external rotation from 65 to 90. On March 13, 2019, the Veteran reported increasing right shoulder pain since 2014 to the point that he had to assist his shoulder with the contralateral arm to elevate it. His limitation of range of motion was secondary to pain. His flexion and abduction were limited to about 35 degrees and external rotation to about 60 degrees. After a cortisone injection administered the same day, the Veteran's range of motion improved to 65 degrees without pain and to 85 degrees through pain. According to post-service VA treatment records, the Veteran had moderate to severe right shoulder pain with some swelling and limited range of motion. He had difficulties lifting and moving in certain directions. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the September 2015 VA examinations, the Veteran indicated that he had flare ups of his right shoulder disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the September 2015 VA examination report did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion as the September 2021 VA examination did estimate functional loss after repeated use over time. In the September 2015 VA examination, the Veteran had flexion to 100 degrees and abduction to 90 degrees. By the September 2021 VA examination, his flexion and abduction, after repeated use over time, were reduced to 90 degrees. As such, the Board would expect that similar findings, but no worse, would have been shown at the time of the September 2015 VA examination report. Additionally, contemporaneous post-service treatment records do not indicate that the Veteran's range of motion during a flare up would have been limited to flexion or abduction of 45 degrees or less. As the contemporaneous evidence, to include the September 2021 VA examination, does not indicate that the September 2015 VA examiner would have found flexion or abduction limited to at least 45 degrees, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). The Board acknowledges that a March 13, 2019 private treatment record indicated that the Veteran's flexion and abduction were limited to 35 degrees. However, the Board finds that this finding lacks probative value as it was not indicated whether a goniometer was used. VA regulations provide that the use of a goniometer in the measurement of limitation of motion is "indispensable" in VA examinations. 38 C.F.R. § 4.46. Based on a careful review of all the subjective and clinical evidence, the Board finds that the Veteran's right shoulder disability does not warrant a disability rating in excess of 20 percent under Diagnostic Code 5201. In other words, the evidence does not show that the Veteran's right shoulder disability manifested in flexion or abduction limited to at least 45 degrees. Indeed, the September 2021 VA examination shows that the Veteran's flexion and abduction were limited to 90 degrees at worst. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's right shoulder disability. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 20 percent for a right shoulder disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 10 percent for a cervical spine disability is denied. The Board notes that the schedular criteria for rating the spine have been amended once during the pendency of the Veteran's appeal, effective February 7, 2021. In these regulatory changes, Diagnostic Code 5242 included degenerative disc disease (other than intervertebral disc syndrome) with degenerative arthritis, Diagnostic Code 5243 (intervertebral disc syndrome) specified that it should only be assigned where there was disc herniation with compression and/or irritation of the adjacent nerve root and other disc diagnoses were to be rated under Diagnostic Code 5242, and Diagnostic Code 5244 was added to rate traumatic paralysis, specifically paraplegia (rated under Diagnostic Code 5110) and quadriplegia (to be rated separately under Diagnostic Codes 5109 and 5110 and evaluations combined in accordance with 38C.F.R. §4.25 ). See 85 Fed. Reg. 76,453 76,469 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, in this case, it can only be applied in this matter from February 7, 2021, forward. However, all other rating criteria for the spine, to include the General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating IVDS Based on Incapacitating Episodes remain unchanged. Further, Diagnostic Codes 5235 to 5243 are still evaluated the General Rating Formula for Diseases and Injuries of the Spine unless 5243 is evaluated under the Formula for IVDS Based on Incapacitating Episodes. See 85 Fed. Reg. 76,453, 76,469 (November 30, 2020). The September 2021 VA examiner's findings do not indicate that the Veteran would be awarded a compensable rating under the Formula for Rating IVDS Based on Incapacitating Episodes. As such, the Board concludes that the application of the amended rating criteria would not result in a higher disability rating for the Veteran's cervical spine disability from February 7, 2021, forward. The Veteran's cervical spine disability is currently evaluated as 10 percent disabling, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237, under both the old and new criteria, is evaluated under the General Rating Formula for Disease and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent evaluation is appropriate where there is 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 contour; or, vertebral body contour fracture with loss of 50 percent or more of the height. A 20 percent evaluation is appropriate where there is 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. A 30 percent evaluation is appropriate where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is appropriate where there is unfavorable ankylosis of the cervical spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire 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. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. IVDS may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (Combined Ratings Table). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings will apply: A 20 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In a September 2015 VA examination, the Veteran reported constant neck pain that radiated to his right hand with numbness and weakness and to his right arm with pain. He reported flare ups occurring every day lasting 15 minutes to all day. His reported functional loss included difficulty with lifting and turning his head. Initial range of motion testing showed forward flexion to 45 degrees, extension to 45 degrees, right lateral flexion to 30 degrees, and left lateral flexion to 45 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 60 degrees. The combined range of motion of the cervical spine was 270 degrees. The abnormal range of motion itself contributed to functional loss, specifically inability to turn his head. There was pain on right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation which resulted in functional loss. There was no evidence of pain with weight bearing, or localized tenderness or pain on palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time or during a flare up and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no guarding or muscle spasm, reduction in muscle strength, muscle atrophy, ankylosis, other neurologic abnormalities, or IVDS. Additional factors contributing to disability included interference with turning his head and with overhead work. He occasionally used a brace. Occupational impairment included inability to lift more than 25 pounds and difficulty turning his head. In a December 2017 RO hearing, the Veteran reported limited movement due to his cervical condition. In a February 2018 VA examination, the Veteran reported neck pain. He reported flare ups of pain with cold air, changing weather, lifting, and carrying. His reported functional loss included inability to lift and carry anything "during that time." Initial range of motion testing showed forward flexion to 40 degrees, extension to 45 degrees, right lateral flexion to 35 degrees, and left lateral flexion to 45 degrees, right lateral rotation to 75 degrees, and left lateral rotation to 75 degrees. The combined range of motion of the cervical spine was 315 degrees. There was pain on forward flexion and right lateral flexion which did not result in functional loss. There was no evidence of pain with weight bearing, or localized tenderness or pain on palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time or during a flare up and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation. There was no guarding or muscle spasm, reduction in muscle strength, muscle atrophy, ankylosis, other neurologic abnormalities, or IVDS. He had localized tenderness. The Veteran's cervical spine disability did not impact his ability to work. The examiner found that passive range of motion testing was not feasible to do in a safe and reasonable manner. Non-weight bearing assessment was not applicable and there was no objective evidence of pain with non-weight bearing. The examiner noted that the spine did not have an opposing joint. In a January 2021 hearing, the Veteran reported constant pain and limited range of motion in the cervical pain. He stated that the pain was better in the morning when he first woke up (doing nothing) and at night (relaxing), but that it worsened as the day went on. In a September 2021 VA examination, the Veteran reported neck pain. He did not report flare ups. His reported functional loss included pain with frequent turning of the head. Initial range of motion testing showed forward flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 30 degrees, and left lateral flexion to 30 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees. The combined range of motion of the cervical spine was 265 degrees. There was pain on forward flexion, right lateral flexion, and right lateral rotation which did not result in functional loss. There was no evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation. Upon repetitive use testing, there no additional loss of range of motion. The Veteran was not examined immediately after repeated use over time, but the examiner found that pain significantly limited functional ability with repeated use over time. The estimated range of motion after repeated use over time was forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 25 degrees, and left lateral flexion to 25 degrees, right lateral rotation to 50 degrees, and left lateral rotation to 50 degrees. The combined range of motion of the cervical spine was 225 degrees. There was no guarding or muscle spasm, reduction in muscle strength, muscle atrophy, ankylosis, or other neurologic abnormalities. He had localized tenderness that did not result in abnormal gait or abnormal spinal contour. The Veteran had IVDS with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Occupational impairment included pain with work-related frequent turning of the head, such as with driving. According to a March 2020 private treatment record, the Veteran's cervical range of motion was reduced with pain. His flexion was moderately reduced, extension was severely reduced, right lateral flexion was severely reduced, left lateral flexion was moderately reduced, and right and left rotation was moderately reduced. According to post-service VA treatment records, the Veteran had neck pain and cervical spine tenderness. Although the examination reports of record do not contain the results of the passive and non-weight-bearing ranges of motion, the examinations are adequate to decide the claim. The diagnostic criteria for orthopedic conditions do not require the results of passive range of motion testing and do not discern between weight-bearing and non-weight-bearing, and do not consider range of motion of the opposite joint (if undamaged). The rating criteria for orthopedic conditions require consideration of ranges of motion, where applicable, and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). This information is provided in the VA examinations of record. In the September 2015 and February 2018 VA examinations, the Veteran indicated that he had flare ups of his cervical spine disability. In Sharp v. Shulkin, the Court held that VA examiners must estimate the functional loss that would occur during flare ups. 29 Vet. App. 26 (2017). Although the September 2015 and February 2018 VA examination reports did not estimate the functional loss during flare ups, the Board finds that a remand is not warranted to obtain a retrospective opinion as the September 2021 VA examination did estimate functional loss after repeated use over time. In the September 2015 and February 2018 VA examinations, the Veteran had forward flexion to 40 and 45 degrees and a combined range of motion of 270 or 315 degrees, respectively. By the September 2021 VA examination, his forward flexion and combined range of motion, after repeated use over time, were reduced to 40 degrees and 225 degrees, respectively. As such, the Board would expect that similar findings, but no worse, would have been shown at the time of the September 2015 and February 2018 VA examination reports. Additionally, contemporaneous post-service treatment records do not indicate that the Veteran's range of motion during a flare up would have been limited to forward flexion of 30 degrees or less or combined range of motion of 170 degrees or less. As the contemporaneous evidence, to include the September 2021 VA examination, does not indicate that the September 2015 and February 2018 VA examiners would have found forward flexion limited to at least 30 degrees or combined range of motion limited to at least 170 degrees during flare ups, the Board finds that a remand to obtain a retrospective opinion as to the functional loss during flare ups would not raise any reasonable possibility of further substantiating the Veteran's claim. 38 C.F.R. § 3.159 (d); see Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that the Board is not required to remand a claim for additional development when it would impose unnecessary burdens on VA with no additional benefit flowing to the veteran). Based on a careful review of all of the subjective and clinical evidence, the Board finds that the Veteran's cervical spine disability does not warrant a disability rating in excess of 10 percent. In other words, the evidence does not show that the Veteran's cervical spine disability manifested in forward flexion at 30 degrees or less, combined range of motion at 170 degrees or less, muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, favorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. Indeed, the September 2021 VA examination shows that the Veteran's forward flexion was limited to 40 degrees at worst and combined range of motion was limited to 225 degrees at worst after repeated use over time. Further, the VA examinations of record did not find guarding, muscle spasm, or ankylosis. Additionally, the evidence of record did not show functional equivalent to ankylosis as contemplated by General Rating Formula for Disease and Injuries of the Spine, such as fixation of a spinal segment, difficulty walking due to limited line of vision, restricted opening of the mouth and chewing, limited breathing due to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Further, the clinical evidence, to include the VA examinations, do not show that the Veteran had IVDS with episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's cervical spine disability. Therefore, the benefit-of-the-doubt rule does not apply and a disability rating in excess of 10 percent for a cervical spine disability must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity is denied. The Veteran's radiculopathy of the right upper extremity is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8510. As noted above, the Veteran is right-handed. Consequently, for rating purposes, the right upper extremity is the major upper extremity. Under Diagnostic Code 8510, disability ratings of 20, 40, and 50 are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the upper radicular group (major). A 70 percent rating is warranted for complete paralysis of the upper radicular group (major): all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. In a September 2015 VA examination, the examiner found moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. There was mild radiculopathy involving the upper radicular group. In a December 2017 RO hearing, the Veteran reported right shoulder pain shooting down to his fingers. This was worse in the morning and worsened in the cold. Sometimes, he could not open his hands, such that he could not open his truck's door. In a February 2018 VA examination, the examiner found mild pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. There was mild radiculopathy involving the upper radicular group. In the January 2021 hearing, the Veteran reported shooting pain, numbness, and tinging in the right upper extremity with occasional loss of sensation. In a September 2021 VA examination for the cervical spine, the examiner found mild intermittent paresthesias and/or dysesthesias, and numbness in the right upper extremity. There was radiculopathy involving the upper radicular group. In a September 2021 VA examination for peripheral nerves, the examiner found mild paresthesias and/or dysesthesia and numbness in the right upper extremity. He further found that there was mild incomplete paralysis in the upper radicular group. There was no occupational impact due to the Veteran's right upper extremity radiculopathy. In a December 2015 private treatment record, it was noted that the Veteran's right arm had good strength and sensation. Post-service VA treatment records showed numbness and tingling in the arms and legs. Based on a careful review of all of the subjective and clinical evidence, the Board finds that the Veteran's radiculopathy of the right upper extremity does not warrant an initial disability rating in excess of 20 percent. In other words, the evidence shows that the Veteran's right upper extremity radiculopathy is more closely approximated by mild incomplete paralysis in the upper radicular group. In fact, VA examinations of record indicate that the Veteran's radiculopathy was mild and the September 2021 VA examination for peripheral nerves showed that the Veteran had mild incomplete paralysis of the upper radicular group. The Board has also considered whether higher or separate Diagnostic Codes are applicable. The Veteran has a diagnosis of right upper extremity radiculopathy, specifically that of the upper radicular group. The evidence of record does not show that any of the Veteran's other nerves of the right upper extremity were affected. Accordingly, Diagnostic Code 8510 is the most appropriate Code for application in this case. See Butts v. Brown, 5 Vet. App. 532 (1993). The Board finds that the preponderance of the evidence is against finding that a higher rating is warranted for the Veteran's right upper extremity radiculopathy. Therefore, the benefit-of-the-doubt rule does not apply and an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.