Citation Nr: 21006222 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-30 662 DATE: February 3, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative joint disease prior to September 3, 2020, and in excess of 30 percent thereafter, is denied. Entitlement to service connection for right upper extremity neuropathy is granted. Entitlement to service connection for left upper extremity neuropathy is granted. REMANDED Entitlement to a compensable disability rating for right upper extremity radiculopathy associated with cervical spine degenerative joint disease prior to August 2, 2018, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable disability rating for left upper extremity radiculopathy associated with cervical spine degenerative joint disease prior to August 2, 2018, and in excess of 20 percent thereafter, is remanded. FINDINGS OF FACT 1. Prior to September 3, 2020, the Veteran’s cervical spine degenerative joint disease was manifest by, at most, forward flexion limited to 45 degrees, combined range of motion of 290 degrees, pain with motion but not contributing to additional loss of range of motion, localized tenderness not resulting in abnormal gait or spinal contour, and flare-ups consisting of increased pain approximately two weeks each month. 2. From September 3, 2020, the Veteran’s cervical spine degenerative joint disease is manifest by forward flexion limited to 5 degrees without evidence of ankylosis. 3. The Veteran’s right upper extremity neuropathy began during active service. 4. The Veteran’s left upper extremity neuropathy began during active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spine degenerative joint disease prior to September 3, 2020, and in excess of 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 2. The criteria for service connection for right upper extremity neuropathy are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 3. The criteria for service connection for left upper extremity neuropathy are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to February 2012. These matters come to the Board of Veterans’ Appeals (Board) from a November 2012 rating decision which, in pertinent part, granted service connection for cervical spine degenerative joint disease, evaluated at 10 percent, effective March 1, 2012, and denied entitlement to service connection for right and left upper extremity neuropathy. In November 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board Central Office hearing in Washington, D.C. A copy of the transcript is of record. In March 2018, the Board remanded the matters for further development, to include obtaining VA examinations and medical opinions. In a July 2019 rating decision, the RO granted service connection for right and left upper extremity radiculopathy associated with cervical spine degenerative joint disease, evaluated at 20 percent each, effective August 2, 2018. The Board notes that while the Veteran has not specifically appealed the ratings assigned for right and left upper extremity radiculopathy, any neurologic manifestations of her cervical spine degenerative joint disease are part and parcel of her cervical spine increased rating claim on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Because the grant of service connection for right and left upper extremity radiculopathy is part and parcel of the Veteran’s cervical spine increased rating claim, and as the ratings do not commence from the earliest possible effective date stemming from the underlying claim for a higher rating for the service-connected cervical spine disability or constitute the highest possible rating, the claims remain at issue. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the issues on appeal have been recharacterized as listed on the title page of this decision. The Board additionally notes while the RO undertook development pertaining to the claims of service connection for right and left upper extremity neuropathy, to date, the RO has not issued a rating decision or supplemental statement of the case (SSOC) on the issues. However, given that the following decision grants the benefits sought for bilateral upper extremity neuropathy, there is no prejudice to the Veteran. In February 2020, the Board remanded the cervical spine increased rating claim for further development, to include obtaining a new VA examination. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative joint disease prior to September 3, 2020, and in excess of 30 percent thereafter. The Veteran contends that an increased disability rating is warranted for her cervical spine degenerative joint disease, to include the assignment of ratings for bilateral upper extremity neurologic manifestations associated with her cervical spine disability. The Veteran’s cervical spine degenerative joint disease is evaluated at 10 percent prior to September 3, 2020 under Diagnostic Code (DC) 5242, which evaluates disabilities according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula), and at 30 percent thereafter. 38 C.F.R. § 4.71a, DC 5235-5243. Under the General Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or for a combined range of motion greater than 170 degrees but not greater that 335 degrees. It may also be assigned for any muscle spasm, guarding or localized tenderness that does not result in an abnormal gait or abnormal spinal contour, or for a vertebral body fracture with the loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the combined range of motion is not greater than 170 degrees. It can also be assigned if there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 30 percent rating is warranted when there is forward flexion of the cervical spine that is 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the cervical spine, the 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. The General Formula applies for rating purposes with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Formula, Note (1). For the purposes of rating disabilities of the cervical spine, normal forward flexion, extension, and left and right lateral flexion of the cervical spine are zero to 45 degrees. Left and right lateral rotation are zero to 80 degrees. Thus, the normal combined range of motion for the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, General Formula, Note (2). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected body part. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion; and, as such, a body part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is considered an important factor of joint disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints in question are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but it may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). As a preliminary matter, the Board notes that all of the Veteran’s VA examinations prior to September 2020 were deemed inadequate for rating purposes by the Board. However, the Board will review their findings to provide context and to show the progression of the Veteran’s condition based on objective figures and statements by the Veteran that nevertheless remain reliable. An April 2012 VA examination report reflects the Veteran reported having left-sided neck pain on a daily basis which she treated with daily ibuprofen, neck exercises, and a heating pad, but she denied flare-ups. Upon examination, forward flexion, extension, and right and left lateral flexion were to 45 degrees or greater, with pain noted in forward flexion and extension at 45 degrees or greater, right lateral rotation was to 80 degrees or greater, and left lateral flexion was to 70 degrees, with pain beginning at 70 degrees. Pain was not noted in right and left lateral flexion and right lateral rotation. Pain on movement after repetitive use contributed to functional loss and/or impairment, but there was no additional loss of range of motion. The Veteran’s neck was tender or painful to palpation, but there was no guarding or muscle spasm, loss of muscle strength except in the right elbow, or muscle atrophy. The examiner indicated that the Veteran’s cervical spine disability did not impact her ability to work. Associated imaging studies revealed mild degenerative changes with disc space and foraminal narrowing of the lower cervical spine. A January 2013 cervical spine MRI reflects a history of right bicep weakness and muscle wasting, rule out C5 impingement. The MRI revealed multi-level degenerative changes, worst at C5-6. During the November 2016 Board hearing, the Veteran testified that it was difficult to turn her head to the right past 30 degrees, but that she did not have any issues turning her head to the left. She further testified that her cervical spine disability had worsened since she was last examined by the VA. August and October 2017 physical therapy records reflect the Veteran reported neck pain and numbness and tingling of her hands, with radiating pain that had increased over the last one to two months. A cervical spine examination revealed full flexion, moderate restriction in extension, and mild restriction in rotation bilaterally. November 2017 and January 2018 physical therapy cervical spine examinations show mild end-range restriction in flexion and rotation and moderate restriction in extension. An August 2018 physical therapy cervical spine examination shows mild restriction of flexion and moderate restriction of extension and bilateral rotation. An April 2019 VA examination report reflects the Veteran reported constant daily neck pain with flare-ups lasting two weeks of each month. She reported treating her neck pain with ibuprofen or acetaminophen, physical therapy, traction, and acupuncture. Upon examination, forward flexion, extension, right lateral flexion, and left lateral rotation were to 45 degrees each, left lateral flexion was to 30 degrees, and right lateral rotation was to 80 degrees. Pain was noted in forward flexion, left lateral flexion, and left lateral rotation, but did not result in or cause functional loss. There was no additional loss of function or range of motion after repetitive use testing and the examiner indicated the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repeated use over time or during flare-ups. The cervical spine was tender to palpation, but there was no guarding or muscle spasm. Muscle strength was normal except in left finger abduction and there was no atrophy. Finally, the examiner found that the Veteran’s cervical spine disability did not impact her ability to work. A September 2020 VA examination report reflects the Veteran reported chronic, constant neck pain with muscle spasms, described as a stabbing pain that sometimes radiated down both arms, with numbness and tingling. Her typical neck pain was rated at 8 out of 10 and she reported flare-ups occurring three times a year lasting four to eight months, with pain rated at 9 to 10 out of 10. Upon examination, forward flexion was to 10 degrees, extension to 40 degrees, right and left lateral flexion were to 20 degrees, right lateral rotation was to 60 degrees, and left lateral rotation was to 50 degrees, resulting in a limited ability to turn the neck and look up and down. Pain was noted in all ranges of motion and contributed to functional loss. Pain contributed to additional function loss after repeated use over time and during flare-ups, with forward flexion limited to 5 degrees, extension to 35 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 55 degrees and left lateral rotation to 45 degrees. There was sharp pain to palpation and muscle spasm that did not result in abnormal gait or spinal contour. Muscle strength and reflexes were normal and there was no atrophy. Finally, the examiner found the Veteran’s cervical spine disability impacted her ability to work, noting she had missed two to four weeks of work in the past twelve months and pain with turning the neck and prolonged computer use. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s cervical spine degenerative disc disease prior to September 3, 2020. The Veteran’s April 2012 VA examination report shows forward flexion to 45 degrees or greater, combined range of motion of 330 degrees, pain with motion but not contributing to additional loss of range of motion, localized tenderness not resulting in abnormal gait or spinal contour, and absence of flare-ups. The Veteran’s April 2019 VA examination report shows forward flexion to 45 degrees, combined range of motion of 290 degrees, pain with motion but not contributing to additional loss of range of motion, localized tenderness not resulting in abnormal gait or spinal contour, and flare-ups consisting of increased pain approximately two weeks each month. These findings are more nearly approximated by the 10 percent rating currently assigned. The Board finds that a rating in excess of 10 percent prior to September 3, 2020 is not warranted, as the evidence of record does not show that the Veteran’s cervical spine disability was manifested by symptomatology such as forward flexion at 30 degrees or less, combined range of motion at 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. The Board recognizes that the Veteran’s April 2012 and April 2019 VA examinations were inadequate. As it pertains to the April 2019 VA examination specifically, the Board found that it did not comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in that the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. However, upon review of the entire record, the Veteran did not allege that range of motion was further limited during flare-ups. Additionally, the ranges of motion found during the April 2019 VA examination were consistent with those recorded during physical therapy sessions, times when the Veteran sought out additional treatment due to an increase in cervical spine symptoms. During those physical therapy sessions, there was mild end-range restriction in flexion, moderate restriction in extension, and mild restriction in rotation. The Board emphasizes that the benefit of the doubt has been resolved in the Veteran’s favor and notes that a remand for a retrospective opinion as to any additional functional loss or loss of range of motion during flare-ups would only serve to unnecessarily delay adjudication of the Veteran’s claim in light of the fact she did not then allege that range of motion was further limited during flare-ups and has not alleged that the April 2012 and April 2019 examinations did not sufficiently describe any functional limitations due to her cervical spine disability. From September 3, 2020, the Veteran is in receipt of the maximum schedular rating available based on limitation of motion in the absence of unfavorable ankylosis of the cervical spine. The record of evidence does not show a finding of ankylosis or symptomatology more nearly approximated by ankylosis, favorable or otherwise. Where a veteran is in receipt of the maximum schedular rating based on limitation of motion, and a higher rating requires ankylosis, the regulations pertaining to functional impairment are not for application. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. §§ 4.40, 4.45, 4.59. As such, a rating in excess of 30 percent from September 3, 2020 is not warranted. The Board has considered whether additional or higher ratings are warranted for any neurologic manifestations of the Veteran’s cervical spine degenerative joint disease. As discussed below, the Board finds that a remand is necessary to adequately assess her bilateral upper extremity radiculopathy associated with her cervical spine degenerative joint disease and the Veteran has not reported any other neurologic manifestations due to her cervical spine disability. In conclusion, after a thorough review of the record, the Board finds that the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent prior to September 3, 2020, and in excess of 30 percent thereafter, for cervical spine degenerative joint disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 2. Entitlement to service connection for right upper extremity neuropathy 3. Entitlement to service connection for left upper extremity neuropathy. The Veteran contends that service connection is warranted for right and left upper extremity neuropathy. The Board concludes that the Veteran has a current disability that began during or is otherwise related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records reflect that in May 2011, the Veteran was seen for complaints of neck pain. While she denied numbness or tingling of the upper extremities, she admitted to pain and weakness in her right arm. She was diagnosed with cervicalgia and her treating clinician indicated that her right arm pain may be due to cervical disc disease. On her November 2011 retirement examination, she reported numbness and tingling in her fingers, but an associated neurologic examination was objectively normal. Post-service, an April 2012 VA examination report reflects that while the Veteran claimed bilateral upper extremity neuropathy, the examination was normal and the examiner found no evidence of bilateral upper extremity neuropathy by history or during the examination. However, a January 2013 treatment record and a February 2013 electrodiagnostic study reflects the Veteran reported chronic right-sided neck pain, numbness and tingling involving the volar tips of all five fingers bilaterally, and right upper extremity weakness with overhead activities. While cervical radiculopathy was suspected, the electrodiagnostic study revealed no evidence of radiculopathy. Rather, the Veteran was found to have bilateral ulnar neuropathies across both elbows. Thus, the question becomes whether the current disability is related to service. An April 2019 VA examination report reflects the Veteran reported pain radiating bilaterally from her elbows to her hand, especially the two ulnar fingers, with tingling paresthesias. The examiner provided a diagnosis of bilateral ulnar neuropathy but did not provide an etiological opinion. In an August 2019 VA addendum opinion, the April 2019 VA examiner explained that the Veteran’s bilateral ulnar neuropathy was present during her active duty service and was initially thought to represent cervical radiculopathy. However, electrodiagnostic studies revealed that the correct diagnosis was ulnar neuropathy, and that while the Veteran also has cervical radiculopathy manifested by radiation of pain to her shoulders, there was no connection between her cervical spine disability and her diagnosed bilateral ulnar neuropathy. Thus, after examining the Veteran and reviewing the claims file, the examiner opined that the Veteran’s bilateral ulnar neuropathy was at least as likely as not incurred in or caused by service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral ulnar neuropathy arose in or is otherwise related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral ulnar neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for right upper extremity radiculopathy associated with cervical spine degenerative joint disease prior to August 2, 2018, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to a compensable disability rating for left upper extremity radiculopathy associated with cervical spine degenerative joint disease prior to August 2, 2018, and in excess of 20 percent thereafter, is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to increased ratings for right and left upper extremity radiculopathy associated with cervical spine degenerative joint disease at this time. As it pertains to these claims, the Veteran is in receipt of a 20 percent rating each for right and left upper extremity radiculopathy from August 2, 2018. However, in an August 2019 VA addendum opinion, the VA examiner explained that the Veteran’s cervical radiculopathy is manifested by radiation of pain to her shoulders. Upon review of the evidence of record, post-service treatment records reflect that the Veteran complained of right shoulder pain lasting three months as early as September 2017. She additionally reported left shoulder pain in October 2017 with insidious onset in June or July 2017. Therefore, the Board finds that a remand is warranted for an addendum opinion as to the Veteran’s bilateral upper extremity radiculopathy, to include an opinion as to when radicular symptoms first manifested, and if symptoms first manifested prior to August 2, 2018, whether the symptoms were mild, moderate, or severe in severity. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from October 2019 to present. 2. Obtain an addendum opinion from an appropriate clinician as to the Veteran’s bilateral upper extremity radiculopathy. An in-person examination is not necessary unless deemed so by the examiner. The examiner is asked to opine as to when radicular symptoms first manifested, to include consideration of treatment records showing complaints of right shoulder pain lasting three months in September 2017 and left shoulder pain in October 2017 with insidious onset in June or July 2017, and an August 2019 VA medical opinion that the Veteran’s radiculopathy is manifested by shoulder pain. If the examiner finds that right or left upper extremity radiculopathy manifested prior to August 2, 2018, the examiner must opine as to whether the radiculopathy was mild, moderate, or severe in severity. 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.