Citation Nr: A21020277 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200523-88479 DATE: December 20, 2021 ORDER A separate compensable rating for right upper extremity cervical radiculopathy is denied. FINDING OF FACT A separate compensable rating for right upper extremity cervical radiculopathy would result in impermissible pyramiding in violation of 38 C.F.R. § 4.14. CONCLUSION OF LAW The criteria for a separate compensable rating for right upper extremity cervical radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. § 4.71a (2002); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.71a, 4.124a (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1972 to October 1974. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision appealed in a timely May 2020 notice of disagreement (NOD) electing Direct Review by the Board. 1. A separate rating for right upper extremity cervical radiculopathy At the outset, the Board notes that a series of intervening adjudications during the pendency of this appeal has materially altered its context. Historically, the Veteran had a pending appeal seeking higher ratings for a service-connected cervical spine disability. In June 2019, the Board remanded that appeal for additional examinations. In May 2020, the Agency of Original Jurisdiction (AOJ) granted a separate 20 percent rating for right upper extremity cervical radiculopathy from February 12, 2020. The Veteran's timely NOD appealed that rating, arguing that the examination report relied on in that rating decision supported a higher 40 percent rating based on moderate neurological involvement, but did not indicate any disagreement with the effective date. However, a subsequent December 2020 Board decision during the pendency of this appeal granted a 40 percent rating for cervical spine disability from January 4, 2006 and a still higher 60 percent (maximum) rating for such disability from May 6, 2008. The Board at that time explicitly found that such ratings were warranted under an old Code (5293) for intervertebral disc syndrome (IVDS) that was in effect when the Veteran's original rating appeal began. A rating decision later that month implemented that award and simultaneously folded his service-connected right and left upper extremity cervical radiculopathy ratings into the rating for the underlying cervical spine disability under the old Code 5293, recharacterizing that disability as "cervical spine spondylosis and degenerative disk disease (DDD) (formerly [Code] 5290) (with radiculopathy of the bilateral upper extremities formerly rated under [Code] 8510)." As a result, the rating that was originally the subject of this appeal is no longer in effect during the period on appeal. Therefore, substantively speaking, the Veteran's current appeal seeks to re-establish a separate, compensable rating for service-connected right upper extremity cervical radiculopathy. This context raises a new threshold question because (1) his current rating for the period on appeal is the maximum schedular rating under Code 5293; (2) that version of the IVDS rating criteria explicitly contemplates "symptoms compatible with sciatic neuropathy...or other neurological findings"; (3) unlike the current General Rating Formula for Diseases and Injuries of the Spine, there is no note under the 2002 rating criteria indicating associated objective neurological manifestations should be separately rated; and (4) 38 C.F.R. § 4.14 prohibits the "pyramiding," which it defines as "evaluation of the same disability under various diagnoses." See id.; compare 38 C.F.R. § 4.71a (2021) with 38 C.F.R. § 4.71a (2002). Consequently, the Board must first consider whether the Veteran may still be separately rated for neurological manifestations of cervical spine disability under the circumstances without overlapping with compensation under the cervical spine disability rating. Unfortunately, here, the Veteran's current rating for cervical IVDS under the old Code 5293 already explicitly compensates him for any associated cervical radiculopathy throughout the period under appeal (particularly as he does not contest the February 2020 effective date of the May 2020 rating and the current rating under Code 5293 for cervical IVDS both is the maximum under that criteria and extends back to 2008). Therefore, any additional award for right upper extremity cervical radiculopathy would be impermissible pyramiding prohibited by § 4.14. It is worth noting that the Veteran's current disability rating for his neck disability and associated upper extremity radiculopathies actually exceeds the combined rating of those disabilities when they were separately compensated. Regardless, however, the only legally permissible way the Veteran could be awarded separate ratings for his upper extremity cervical radiculopathy would be to rate his cervical spine disability (which is not currently on appeal) under the current spinal rating criteria (which provides for the possibility of separate ratings for neurological manifestations) rather than the old Code 5293 for IVDS. To do so, the Veteran would have to either appeal that cervical spine rating or file a claim seeking a higher rating for such disability that includes separate compensable ratings for cervical radiculopathies. As it stands, however, the Board must unfortunately find that the benefit sought on appeal is legally impermissible and, therefore, that the appeal must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.