Citation Nr: 21077282 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 07-25 319 DATE: December 29, 2021 ORDER For the appellate period from June 7, 2011 to May 24, 2016, entitlement to a disability rating of 30 percent, but no higher, for a cervical spine disability is granted. For the appellate period from August 1, 2016 to September 27, 2021, entitlement to a disability rating of 30 percent, but no higher, for a cervical spine disability is granted. Beginning September 28, 2021, entitlement to a disability rating in excess of 30 percent for a cervical spine disability is denied. For the appellate period from July 14, 2016 to June 24, 2021, entitlement to a compensable rating for radiculopathy of the right upper extremity is denied. Beginning June 25, 2021, entitlement to a disability rating of 40 percent, but no higher, for radiculopathy of the right upper extremity is granted. Beginning June 10, 2020, entitlement to a disability rating of 30 percent, but no higher, for radiculopathy of the left upper extremity is granted. FINDINGS OF FACT 1. For the appellate periods from June 7, 2011 to May 24, 2016 and from August 1, 2016 to September 27, 2021, the evidence is in equipoise as to whether the Veteran's cervical spine disability was manifested by forward flexion of the cervical spine to 15 degrees or less, but not by unfavorable ankylosis (or functional ankylosis) of the entire cervical spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. From May 25, 2016 to July 31, 2016, the Veteran is in receipt of a temporary total rating for post-surgical convalescence for his cervical spine disability. 3. Beginning September 28, 2021, the manifestations of the Veteran's cervical spine disability do not more nearly approximate unfavorable ankylosis (or functional ankylosis) of the entire cervical spine or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 4. For the appellate period from July 14, 2016 to June 24, 2021, there is no evidence of radicular symptoms in the Veteran's right upper extremity. 5. Beginning June 25, 2021, the evidence is in equipoise as to whether the Veteran experienced radicular symptoms in his right upper extremity which were moderate in nature; his symptoms and level of impairment do not more nearly approximate severe incomplete paralysis. 6. Beginning June 10, 2020, the evidence is in equipoise as to whether the Veteran experienced radicular symptoms in his left upper extremity which were moderate in nature; his symptoms and level of impairment do not more nearly approximate severe incomplete paralysis. CONCLUSIONS OF LAW 1. For the appellate period from June 7, 2011 to May 24, 2016, the criteria for a disability rating of 30 percent, but no higher, for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. For the appellate period from August 1, 2016 to September 27, 2021, the criteria for a disability rating of 30 percent, but no higher, for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.7, 4.71a, DC 5242. 3. Beginning September 28, 2021, the criteria for a disability rating in excess of 30 percent for a cervical spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5242. 4. For the appellate period from July 14, 2016 to June 24, 2021, the criteria for a compensable rating for radiculopathy of the right upper extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.124a, DC 8510. 5. Beginning June 25, 2021, the criteria for a disability rating of 40 percent, but no higher, for radiculopathy of the right upper extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8510. 6. Beginning June 10, 2020, the criteria for a disability rating of 30 percent, but no higher, for radiculopathy of the left upper extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1984 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As discussed in the Board's November 2020 decision, the Veteran requested to opt into the Rapid Appeals Modernization Program (RAMP) for higher-level review in December 2017 and February 2018. However, for reasons that are unclear, the Agency of Original Jurisdiction (AOJ) did not process the Veteran's RAMP Opt-In Election Forms. In February 2018, the Board remanded the matters under the legacy system. In a July 2020 letter, the Board contacted the Veteran to inquire whether he still wished to participate in RAMP. Neither the Veteran, nor his representative, responded to the July 2020 letter, which stated that his appeal would continue under the legacy system if he did not respond. Accordingly, the Board will adjudicate the appeal under the legacy appeals process. Procedural History As detailed below, this case has a complex procedural history. In a January 2006 rating decision, the RO granted service connection for the Veteran's cervical spine disability and assigned a 10 percent disability rating, effective September 1, 2005. In an August 2011 rating decision, the RO increased the rating for the Veteran's cervical spine disability to 20 percent, effective July 7, 2011. In decisions dated December 2010 and May 2011, the Board remanded the matter for further development. In September 2012, the Board denied entitlement to a cervical spine disability rating in excess of 10 percent from September 1, 2005 to June 3, 2006, granted a 20 percent disability rating from June 4, 2006 to July 6, 2011, and denied entitlement to a disability rating in excess of 20 percent beginning July 7, 2011. While the Veteran was satisfied with his cervical spine disability ratings from September 1, 2005 to July 6, 2011, he appealed the Board's denial of entitlement to a cervical spine disability rating in excess of 20 percent beginning July 7, 2011 to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the portion of the Board's September 2012 decision that denied entitlement to a cervical spine disability rating in excess of 20 percent beginning July 7, 2011, and remanded the matters to the Board for further adjudication consistent with the JMPR. In January 2014, the Board remanded the matters for further development in accordance with the JMPR. In an August 2016 rating decision, the RO granted a temporary total rating for post-surgical convalescence for the Veteran's cervical spine disability from May 25, 2016 to July 31, 2016, granted special monthly compensation at the housebound rate from May 25, 2016 to July 31, 2016, and reinstated the 20 percent cervical spine disability rating from August 1, 2016. The RO also granted service connection for a scar from the Veteran's cervical spine surgery and assigned a 0 percent rating, effective May 25, 2016. In February 2018, the Board remanded the matters for additional development. In an October 2019 rating decision, in pertinent part, the RO granted service connection for radiculopathy of the right upper extremity and assigned disability ratings of 0 percent from July 10, 2006, 20 percent from April 24, 2012, and 0 percent from July 14, 2016. The RO also granted service connection for radiculopathy of the left upper extremity and assigned disability ratings of 20 percent from July 7, 2011 and 0 percent from July 14, 2016. In a September 2020 rating decision, in pertinent part, the RO increased the disability rating for the Veteran's radiculopathy of the left upper extremity to 20 percent, effective June 10, 2020. In November 2020, the Board remanded the matters for additional development. In a March 2021 rating decision, the RO increased the disability rating for the Veteran's cervical spine surgical scar to 10 percent, effective February 10, 2021. In a May 2021 decision, the Board assigned a disability rating of 20 percent for radiculopathy of the right upper extremity from July 10, 2006 to April 23, 2012, denied entitlement to a disability rating in excess of 20 percent for radiculopathy of the right upper extremity from April 24, 2012 to July 13, 2016, denied entitlement to a disability rating in excess of 20 percent for radiculopathy of left upper extremity from July 7, 2011 to July 13, 2016, and denied entitlement to a compensable rating for radiculopathy of the left upper extremity from July 14, 2016 to June 9, 2020. The Board also remanded the issues of entitlement to a cervical spine disability rating in excess of 20 percent from June 7, 2011 to May 24, 2016 and beginning August 1, 2016, entitlement to a compensable rating for radiculopathy of the right upper extremity beginning July 14, 2016, and entitlement to a disability rating in excess of 20 percent for radiculopathy of the left upper extremity beginning June 10, 2020. In an October 2021 rating decision, the RO increased the Veteran's cervical spine disability rating to 30 percent, effective September 28, 2021. The issues on appeal have been updated to reflect this award. The matters have now returned to the Board for further appellate consideration. Increased Ratings Claims Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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 (ROM) 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. § 4.71a (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 § 4.71a [or 4.73] criteria."). During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). 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 will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (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. The General Rating Formula provides a 20 percent disability rating when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a 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 disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. DC 5242 was changed to clarify that it applied to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either 5003 or 5010). DC 5243, applicable to IVDS, was changed to clarify that it is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 should be assigned for all other disc diagnoses. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). Separate ratings for neurological manifestations of a spine disability may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. Ratings based on functional impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major. 38 C.F.R. § 4.69. In this matter, the medical evidence reflects that the Veteran is right-hand dominant. Therefore, the Veteran's right extremity will be considered as the major extremity, and his left extremity will be considered as the minor extremity. The Veteran's radiculopathy of the bilateral upper extremities is currently rated under DC 8510, applicable to paralysis of the upper radicular group of nerves. Under DC 8510, disability ratings of 20, 40, and 50 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the upper radicular group of the major extremity, and a 70 percent rating is assigned for complete paralysis of the upper radicular group of the major extremity. Disability ratings of 20, 30, and 40 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the upper radicular group of the minor extremity, and a 60 percent rating is assigned for complete paralysis of the upper radicular group of the minor extremity. DC 8510 further provides that for complete paralysis of the upper radicular group, all shoulder and elbow movements are lost or severely affected, and hand and wrist movements are not affected. The Board observes that on VA examination, involvement of the middle and lower radicular groups of nerves has also been noted. See VA examination reports dated September 2020, February 2021, and September 2021. DC 8511 applies to the middle radicular group of nerves. Under DC 8511, disability ratings of 20, 40, and 50 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the middle radicular group of the major extremity, and a 70 percent rating is assigned for complete paralysis of the middle radicular group of the major extremity. Disability ratings of 20, 30, and 40 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the middle radicular group of the minor extremity, and a 60 percent rating is assigned for complete paralysis of the middle radicular group of the minor extremity. DC 8511 further provides that for complete paralysis of the middle radicular group, adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist are lost or severely affected. DC 8512 applies to the lower radicular group of nerves. Under DC 8512, disability ratings of 20, 40, and 50 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the lower radicular group of the major extremity, and a 70 percent rating is assigned for complete paralysis of the lower radicular group of the major extremity. Disability ratings of 20, 30, and 40 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the lower radicular group of the minor extremity, and a 60 percent rating is assigned for complete paralysis of the lower radicular group of the minor extremity. DC 8512 further provides that for complete paralysis of the lower radicular group, all intrinsic muscles of the hand, and some or all the flexors of the wrist and fingers are paralyzed, with substantial loss of use of hand. DC 8513 applies to all radicular groups of nerves. Under DC 8513, disability ratings of 20, 40, and 70 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all radicular groups of the major extremity, and a 90 percent rating is assigned for complete paralysis of all radicular groups of the major extremity. Disability ratings of 20, 30, and 60 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all radicular groups of the minor extremity, and an 80 percent rating is assigned for complete paralysis of all radicular groups of the minor extremity. The Board acknowledges that terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Therefore, the Board finds that it is appropriate to turn to the dictionary definitions of these terms. Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (in the absence of an express definition, words are given their ordinary meaning). A synonym for "mild" is "benign," and benign is defined in the Merriam-Webster online dictionary as, "of a mild type or character that does not threaten health or life" or "having no significant effect." The Merriam-Webster online dictionary defines "moderate" as "tending toward the mean or average amount or dimension," and it defines "severe" as "causing a lot of physical pain or suffering." The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability from June 7, 2011 to May 24, 2016 and from August 1, 2016 to September 27, 2021, and in excess of 30 percent beginning September 28, 2021 The Veteran is currently in receipt of cervical spine disability ratings of 20 percent for the appellate periods from June 7, 2011 to May 24, 2016 and from August 1, 2016 to September 27, 2021, and 30 percent beginning September 28, 2021. He asserts that higher ratings are warranted. On review of the evidence, both lay and medical, the Board finds that the manifestations of the Veteran's cervical spine disability more nearly approximate the criteria for a 30 percent rating from June 7, 2011 to May 24, 2016, from August 1, 2016 to September 27, 2021, and beginning September 28, 2021. Specifically, the evidence is at least in equipoise as to whether the Veteran has had forward flexion of the cervical spine limited to 15 degrees or less during all periods on appeal. Relevant to the appellate period from June 7, 2011 to May 24, 2016, on VA examination in July 2011, forward flexion of the cervical spine was found to be to 20 degrees, and the Veteran endorsed "pretty much chronic" pain in his neck. In a March 2012 VA primary care initial evaluation note, the Veteran reported pain in his neck when moving it for the last six years, and on physical examination, the VA treatment provider noted that ROM of the neck was severely limited in all directions. The Board acknowledges that the July 2011 VA examination was found inadequate insofar as the VA examiner did not adequately address any neurological abnormalities. However, the ROM findings and the lay information provided by the Veteran during the examination is highly probative as to the severity of his disability. With consideration of the functional loss caused by pain on movement of the neck, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the manifestations of his cervical spine disability more nearly approximate forward flexion limited to 15 degrees. Accordingly, the Board finds that a cervical spine disability rating of 30 percent is warranted under the General Rating Formula for the appellate period from June 7, 2011 to May 24, 2016. As to the appellate period from August 1, 2016 to September 27, 2021, in July 2016 Correspondence, the Veteran reported painful movement of the neck and debilitating episodes and stated that his anterior cervical discectomy and fusion (ACDF) surgery in May 2016 further reduced his ROM an additional 10 degrees in each direction. During the July 2016 VA examination, the Veteran reported decreased cervical spine ROM and more stiffness following the ACDF surgery, although his pain had decreased. In his September 2016 Notice of Disagreement (NOD), the Veteran endorsed daily painful movement of the neck and stiffness and reiterated that his ROM had decreased following surgery. On VA examination in September 2019, the Veteran reported that after his surgery, he had limited ROM of the neck due to fusion and that he had stiffness and intermittent pain in the base of the neck when trying to move. The Board acknowledges that the July 2016 and September 2019 VA examinations were previously found inadequate. Even so, the lay information provided by the Veteran during the examinations regarding his symptoms and functional impairments is highly probative as to the severity of his disability. Additionally, in a September 2021 VA medical opinion, the VA examiner provided a retrospective opinion as to the severity of the Veteran's cervical spine disability at the time of the September 2019 VA examination. The VA examiner opined, "There was a major severity of the Veteran's service-connected neck disability at the time of the September 2019 VA examination... He has severe limitation with his overall functional neck capacity, mainly due to the prior fusion surgery that he underwent..." The examiner further opined, "Though the Veteran was not evaluated after a flare, review of the physical examination; and history noted by the Veteran regarding daily activity suggests too much physical activity/repetitive use would trigger a flare and cause pain resulting in weakness, lack of endurance with a further decrease in range of motion. This condition was noted to often last for several days. This is a major loss of overall functional capacity and is suggestive of the severity of the disability from the neck condition." Although the VA examiner was not able to estimate the Veteran's ROM during flare-ups in terms of degrees, the Board finds the opinion to be highly probative as to the severity of the disability at the time of the September 2019 VA examination. Additionally, on VA examination in February 2021, the Veteran endorsed neck stiffness, pain, and limited ROM, and he reported that he takes Tramadol and Lyrica. While initial ROM testing was noted to reveal forward flexion to 30 degrees, in a March 2021 Statement in Support of Claim, the Veteran stated that he was not measured for the extent of his ROM and indicated that the VA examiner "eyeballed" it. Given the temporal proximity of the February 2021 VA examination to the September 2021 VA examination, which revealed only 15 degrees of forward flexion of the cervical spine, the Board will resolve all reasonable doubt in favor of the Veteran to adopt the findings of the September 2021 VA examination for the appellate period from August 1, 2016 to September 27, 2021. In sum, with consideration of the functional loss caused by pain on movement of the neck and stiffness, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the manifestations of his cervical spine disability more nearly approximate forward flexion limited to 15 degrees for the appellate period from August 1, 2016 to September 27, 2021. Therefore, a disability rating of 30 percent is warranted under the General Rating Formula for this period. However, the manifestations of the Veteran's cervical spine disability do not more nearly approximate the criteria for a rating in excess of 30 percent for any period on appeal. There is no evidence of unfavorable ankylosis (or functional ankylosis) of the entire cervical spine, so as to warrant a higher disability rating of 40 percent under the General Rating Formula. While the Veteran endorses neck stiffness and pain, he still retains some degree of ROM of the cervical spine. The Board also acknowledges that in a June 2020 lay statement, the Veteran reported that he could not stand straight, sit up straight, or lay flat on his back without pain, and that a hunched posture reduced the level of constant pain. Notably, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. There is no evidence that the Veteran's inability to sit or stand straight or to lay flat on his back without pain has resulted in any of the foregoing symptoms. As such, a higher rating is not warranted under the General Rating Formula. Furthermore, there is no evidence of incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, so as to warrant a higher rating of 40 percent under the Formula for Rating IVDS. No VA examiner has determined that the Veteran has IVDS. Additionally, while the Veteran endorsed "debilitating episodes" in July 2016 Correspondence, there is no evidence that such episodes were a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, as defined in 38 C.F.R. § 4.71a, DC 5243, Note (1), or that any such episodes had a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Thus, a higher rating is not warranted under the Formula for Rating IVDS. As an aside, the Board notes that the Veteran is already in receipt of a separate rating for the scar associated with his cervical spine surgery (rated as 0 percent disabling from May 25, 2016 and as 10 percent disabling from February 10, 2021). The Veteran has not expressed disagreement with the disability ratings assigned, and there is no evidence that higher, or differently staged, ratings are warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a compensable rating for radiculopathy of the right upper extremity beginning July 14, 2016 The Veteran is currently in receipt of a noncompensable disability rating for radiculopathy of the right upper extremity beginning July 14, 2016. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, the Board makes the following findings: (1) the manifestations of the Veteran's right upper extremity radiculopathy more nearly approximate the criteria for a noncompensable rating under DC 8510 from July 14, 2016 to June 24, 2021; and (2) beginning June 25, 2021, the manifestations of the Veteran's right upper extremity radiculopathy more nearly approximate the criteria for a 40 percent rating under DC 8510. From July 14, 2016 to June 24, 2021, the preponderance of the evidence is against the assignment of a compensable disability rating for radiculopathy of the right upper extremity. This is because there is no lay or medical evidence of radicular symptoms in the Veteran's right upper extremity during this period. In September 2019, the VA examiner was asked to opine whether the Veteran had any objective neurological abnormalities associated with his cervical spine disability at any time from September 1, 2005 to September 2019. In pertinent part, the VA examiner opined that while the Veteran did have radicular symptoms in the right upper extremity prior to his ACDF surgery, following the procedure, the Veteran reported left hand fingertip numbness in mild severity, but the condition improved, and he denied any residual numbness, tingling, weakness, or atrophy in the upper extremities. On VA examination in September 2020, the Veteran did not endorse any radicular symptoms in the right upper extremity, and the VA examiner did not find any nerve group involvement in the right upper extremity. On VA examination in February 2021, the Veteran denied experiencing any radicular symptoms in the right upper extremity, and the VA examiner did not find any nerve group involvement in the right upper extremity. Furthermore, the Veteran did not endorse numbness, tingling, or weakness in the right upper extremity in VA and private treatment records during this period. See private treatment records dated August 2016 to August 2020; May 2020 VA primary care initial evaluation note. The Board acknowledges that some treatment records indicate the Veteran had "cervical radiculopathy," "cervical region radiculopathy," or "cervical spine stenosis with symptoms of radiculopathy." See private treatment records dated July 2020 to November 2020; May 2020 VA primary care initial evaluation note. However, there is no diagnosis of radiculopathy specifically affecting the right upper extremity, and the Veteran only mentioned radicular symptoms in the left upper extremity during those treatments. For these reasons, the Board finds that the preponderance of the evidence is against a compensable rating for radiculopathy of the right upper extremity from July 14, 2016 to June 24, 2021. Beginning June 25, 2021, the Board finds that the manifestations of the Veteran's radiculopathy of the right upper extremity more nearly approximate the criteria for a 40 percent disability rating. In a VA primary care note dated June 25, 2021, the Veteran was assessed with "R arm radiculopathy," and in the September 2021 VA examination report, the Veteran endorsed pain in the right shoulder, tingling in the fingers on his right hand, numbness, and upper extremity weakness. Physical examination revealed 4 out of 5 strength on right elbow flexion, hypoactive reflexes, and decreased sensation in the inner and outer forearm and hand and fingers on the right side. The VA examiner determined that the Veteran had radicular symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. The examiner noted that the upper and middle radicular groups of nerves were involved. Under DC 8510, a 40 percent disability rating is warranted for moderate incomplete paralysis of the upper radicular group of nerves of the major extremity. Based on the Veteran's lay reports of symptoms and the findings of the September 2021 VA examination, the Board finds that the Veteran's radicular symptoms more nearly approximate the criteria for a 40 percent disability rating under DC 8510 beginning June 25, 2021. However, the Veteran's right upper extremity radicular symptoms and level of impairment do not more nearly approximate severe incomplete paralysis, so as to warrant a higher rating of 50 percent under DC 8510. As discussed previously, the Merriam-Webster online dictionary defines "moderate" as "tending toward the mean or average amount or dimension," and it defines "severe" as "causing a lot of physical pain or suffering." While the Veteran has endorsed radicular symptoms in the right upper extremity, the Veteran's descriptions of his right upper extremity symptoms do not indicate that they cause him a lot of physical pain or suffering. Furthermore, the Board finds it significant that the Veteran's radiculopathy symptoms were characterized as moderate by the September 2021 VA examiner, and that physical examination revealed no muscle atrophy, near full muscle strength, and decreased, but not absent, sensation and reflexes in the right upper extremity. The Board finds that, at most, this demonstrates a level of disability that is moderate, or "tending toward the mean or average amount or dimension." For these reasons, the Board finds that a higher rating is not warranted under DC 8510. Additionally, the Board has considered whether higher, or separate, ratings are warranted under different diagnostic codes. VA examiners have determined that the lower and middle radicular nerve groups of the right upper extremity are also involved. See VA examination reports dated February 2021 and September 2021. However, the Veteran would not be entitled to higher ratings under DCs 8511, 8512, or 8513, applicable to the middle radicular group, lower radicular group, and all radicular groups of nerves, respectively, because 40 percent is the only rating available for moderate incomplete paralysis of the major extremity under any of those codes. Moreover, assigning separate ratings for the upper, middle, and lower radicular group involvement would be to rate the same symptoms or disability multiple times under different DCs. This practice, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Accordingly, the Veteran is not entitled to higher, or separate, ratings for radiculopathy of the right upper extremity. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left upper extremity from June 10, 2020 The Veteran is currently in receipt of a 20 percent disability rating for radiculopathy of the left upper extremity from June 10, 2020. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's left upper extremity radiculopathy more nearly approximate the criteria for a 30 percent disability rating under DC 8510 for moderate incomplete paralysis of the minor extremity from June 10, 2020. In a June 2020 lay statement, the Veteran endorsed radicular pain from his neck to his left shoulder, down his arm, and to the fingers of his left hand, describing it as "excruciating." On VA examination in September 2020, the Veteran endorsed pain shooting down from his neck to his left shoulder and hand and reported that the impact of the condition on his ability to perform occupational functioning and ordinary activities was that it affected his ability to sit for long hours on a computer. Physical examination revealed normal muscle strength, reflexes, and sensation; and the VA examiner determined that the Veteran had radicular symptoms of mild intermittent pain, numbness, and paresthesias and/or dysesthesias in the left upper extremity. The examiner noted that the upper, middle, and lower radicular groups of nerves of the left extremity were involved and opined that the severity of incomplete paralysis for each nerve group was mild. In the February 2021 VA examination report, the examiner determined that the Veteran had radicular symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. The examiner noted that the lower radicular group of nerves was involved and opined that the severity of incomplete paralysis was mild. Physical examination revealed normal muscle strength and reflexes and decreased sensation in the left hand and fingers. On VA examination in September 2021, the Veteran endorsed pain in the left shoulder, tingling in the fingers on his left hand, numbness, and upper extremity weakness. Physical examination revealed 4 out of 5 strength on left elbow flexion, hypoactive reflexes, and decreased sensation in the inner and outer forearm and hand and fingers on the left side. The VA examiner determined that the Veteran had radicular symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. The examiner noted that the upper and middle radicular groups of nerves were involved. Under DC 8510, a 30 percent disability rating is warranted for moderate incomplete paralysis of the upper radicular group of nerves of the minor extremity. As noted previously, a synonym for "mild" is "benign," and benign is defined in the Merriam-Webster online dictionary as, "of a mild type or character that does not threaten health or life" or "having no significant effect." Based on the Veteran's lay descriptions of his left upper extremity radicular symptoms and functional impairments, the Board finds that his symptoms have had a significant effect for the entire period on appeal. As such, the manifestations of the Veteran's left upper extremity radiculopathy exceed the symptoms contemplated by "mild" incomplete paralysis and accordingly, a 30 percent rating is warranted for moderate incomplete paralysis under DC 8510 from June 10, 2020. However, the Veteran's left upper extremity radicular symptoms and level of impairment do not more nearly approximate severe incomplete paralysis, so as to warrant a higher rating of 40 percent under DC 8510. As discussed previously, the Merriam-Webster online dictionary defines "moderate" as "tending toward the mean or average amount or dimension," and it defines "severe" as "causing a lot of physical pain or suffering." The Board acknowledges that in a June 2020 lay statement, the Veteran endorsed excruciating radiating pain in the left upper extremity. However, the Board finds it significant that the Veteran's radiculopathy symptoms were characterized as mild by the September 2020 and February 2021 VA examiners and as moderate by the September 2021 VA examiner. Additionally, physical examination during the period on appeal revealed no muscle atrophy, full or near full muscle strength, normal or decreased (but not absent) sensation, and normal or decreased (but not absent) reflexes in the left upper extremity. The Board finds that, at most, this demonstrates a level of disability that is moderate, or "tending toward the mean or average amount or dimension." For these reasons, the Board finds that a higher rating is not warranted under DC 8510. Additionally, the Board has considered whether higher, or separate, ratings are warranted under different diagnostic codes. VA examiners have determined that the lower and middle radicular nerve groups of the left upper extremity are also involved. See VA examination reports dated September 2020, February 2021, and September 2021. However, the Veteran would not be entitled to higher ratings under DCs 8511, 8512, or 8513, applicable to the middle radicular group, lower radicular group, and all radicular groups of nerves, respectively, because 30 percent is the only rating available for moderate incomplete paralysis of the minor extremity under any of those codes. Furthermore, assigning separate ratings for the upper, middle, and lower radicular group involvement would be to rate the same symptoms or disability multiple times under different DCs. This practice, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Accordingly, the Veteran is not entitled to higher, or separate, ratings for radiculopathy of the left upper extremity. (Continued on the next page) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.