Citation Nr: 21006788 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-08 504 DATE: February 5, 2021 ORDER The appeal with respect to entitlement to service connection for cervical radiculopathy, right upper extremity, is dismissed. A disability rating in excess of 30 percent for cervical spine degenerative disc disease from August 4, 2014 is denied. A separate evaluation for thoracic spine degenerative disc disease is denied. A total disability evaluation due to service-connected disabilities (TDIU), is from March 5, 2015, subject to the law and regulations governing the award of monetary benefits granted. REMANDED Entitlement to service connection for cervical radiculopathy, left upper extremity, is remanded. Entitlement to a TDIU prior to March 5, 2015 is remanded. FINDINGS OF FACT 1. In June 2020, the agency of original jurisdiction (AOJ) granted service connection for cervical radiculopathy, right upper extremity. 2. The Veteran’s cervical spine disorder has not been manifested by ankylosis, or incapacitating episodes as defined by VA regulation, at any time during the period on appeal, to include the period from August 4, 2014. 3. The Veteran’s thoracic spine degenerative disc disease does not cause separate objective neurologic abnormalities or bowel or bladder impairment. 4. The Veteran is unable to secure and follow substantially gainful employment as a result of her service-connected disabilities from March 5, 2015. CONCLUSIONS OF LAW 1. There remains no case or controversy with respect to the Veteran’s entitlement to service connection for cervical radiculopathy, right upper extremity, over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.4, 20.101. 2. The criteria for a rating in excess of 30 percent for a cervical spine disorder from April 18, 2019 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 5242. 3. The criteria for entitlement to a separate evaluation for thoracic spine degenerative disc disease have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a), 4.14. 4. The criteria for the assignment of TDIU due to service-connected disabilities have been met from March 5, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from January 1986 to October 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2013 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota and Oakland, California, respectively. This case was previously before the Board in July 2019, when it was remanded the claims for an increased rating for cervical spine degenerative disc disease, a separate evaluation for thoracic spine degenerative disc disease, and a TDIU to the AOJ for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The July 2019 Board decision also, in pertinent part, denied service connection for left and right upper extremity cervical radiculopathy. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision as to service connection for cervical radiculopathy, right and left upper extremity, and remanding the matter actions consistent with the terms of the JMPR. 1. Entitlement to service connection for cervical radiculopathy, right upper extremity. In June 2020, the AOJ granted the Veteran’s claim for service connection for cervical radiculopathy of the right upper extremity. As the benefit sought on appeal has been allowed, there remains no case or controversy over which the Board may exercise jurisdiction. See 38 U.S.C. §§ 511, 7104; 38 C.F.R. §§ 19.4, 19.5, 20.101; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The appeal must be dismissed. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 2. Entitlement to a disability rating in excess of 30 percent for cervical spine degenerative disc disease from August 4, 2014. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, if the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, if there is vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, if the combined range of motion of the cervical spine is not greater than 170 degrees. Forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine, warrants a 30 percent evaluation. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. 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 normal ranges of motion for each component of spinal motion are the maximums that can be used for calculation of the combined range of motion. The Board notes that the Veteran's cervical spine disorder has been manifested by complaints of pain and limited motion throughout the period on appeal, to include as detailed in medical treatment records and VA examinations. However, even when taking into account her complaints of pain, the Board finds the Veteran's cervical spine disorder has not been manifested by ankylosis at any time during the pendency of the claim, to include the period from August 4, 2014. Both the March 2015 and January 2020 VA examinations explicitly found that there was no ankylosis of the cervical spine. Nothing in the medical treatment records include findings of ankylosis or impairment analogous thereto. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). In other words, the Veteran does not have unfavorable ankylosis thereafter so as to warrant a rating in excess of 30 percent. The Board has also taken into consideration the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in evaluating this disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of this Formula, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See Id., Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). Here, a thorough review of the record, including the medical treatment records and the March 2015 and January 2020 VA examinations, does not reflect that the Veteran's cervical spine has been manifested by incapacitating episodes as defined by VA regulation. For all these reasons, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 30 percent thereafter, to include on the basis of additional "staged" rating(s). The benefit sought on appeal with respect to this claim must be denied. In arriving at this conclusion, the Board is cognizant that Note (1) of the General Rating Formula for Diseases and Injuries of the Spine provides that that any associated objective neurologic impairments should be rated separately under the appropriate Diagnostic Code. See 38 C.F.R. § 4.71a. Here, separate ratings have already been assigned for associated radiculopathy. In pertinent part, the June 2020 rating decision assigned a rating of 20 percent for right upper extremity cervical radiculopathy. The Veteran did not appeal that rating; as such, it is not presently before the Board for adjudication. See 38 C.F.R. §§ 20.200, 20.302. A thorough review of the record does not demonstrate that the Veteran has any other associated neurologic impairment associated with the cervical spine other than the already separately evaluated radiculopathy of the upper extremities. In pertinent part, a January 2020 VA examination explicitly found there was no such impairment. Thus, no additional, separate ratings are warranted. 3. Entitlement to a separate evaluation for thoracic spine degenerative disc disease. The Veteran seeks entitlement to a separate evaluation for thoracic spine degenerative disc disease. Specifically, in the February 2018 substantive appeal, the Veteran’s representative asserted that the Veteran did not disagree with the issue of combining the Veteran’s thoracic spine and low back condition into one evaluation. Rather, the Veteran’s representative specifically requested separate evaluations for bilateral lower extremity radiculopathy. As noted above, note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Initially, the Board notes that the June 2020 rating decision assigned a rating of 20 percent for left lower extremity radiculopathy and 10 percent for right lower extremity radiculopathy. The Veteran did not appeal those ratings; as such, they are not presently before the Board for adjudication. Also, the January 2020 VA examiner noted that the identified discs of the Veteran’s thoracic spine manifests with loss of range of motion and pain with movement; however, it does not specifically cause other objective neurologic abnormalities, nor is there evidence of bowel or bladder impairment cause by these conditions. While the Veteran is competent to report symptoms and limitations, she is not competent to opine as to the nature and etiology of those symptoms, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The January 2020 VA examiner is competent to opine as to the nature and etiology of the Veteran's back symptoms. The Board finds the January 2020 examiner's opinion credible and gives it probative weight, as the examiner reviewed the claims file, conducted a physical examination and gave a detailed explanation to support his opinion. Based on this conclusion, to assign a separate rating based on the Veteran’s same symptomatology would violate the rule against pyramiding. See 38 C.F.R. § 4.14. The Board finds that the preponderance of the evidence is against the claim for entitlement to a separate evaluation for thoracic spine degenerative disc disease. This being the case, the doctrine of reasonable doubt does not apply in this claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied. 4. Entitlement to a TDIU. The Veteran contends that her service-connected disorders prevent her from engaging in substantially gainful employment and, therefore, that she is entitled to a total disability rating. A TDIU is warranted where the evidence of record shows that a Veteran is unable to secure or follow a substantially gainful occupation, consistent with her education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining one 60-percent disability, or one 40-percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In the present case, the Board finds that the Veteran meets the threshold requirements for a schedular award of a TDIU. From March 5, 2015, she has been in receipt of a 60 percent combined rating due to impairments related to herniated nucleus pulposus L4-5, with chronic low back pain and radiculopathy and thoracic spine degenerative disc disease (rated 40 percent disabling), and cervical spine degenerative disc disease (rated 30 percent disabling). The Veteran’s conditions are combined for the purposes of eligibility for TDIU as they are affecting a single body system (orthopedic). From January 31, 2020, she has been in receipt of an 80 percent combined rating due to impairments related to herniated nucleus pulposus L4-5, with chronic low back pain and radiculopathy and thoracic spine degenerative disc disease (rated 40 percent disabling); cervical spine degenerative disc disease (rated 30 percent disabling); lower left extremity radiculopathy (rated 20 percent disabling); right upper extremity cervical radiculopathy (rated 20 percent disabling); two neck scars (rated 10 percent disabling); lower right extremity radiculopathy (rated 10 percent disabling); and lumbosacral spine scar (rated noncompensably). A review of the record shows that the Veteran has completed four years of college education with a work history that included clinical research and clinical trial manager. She is currently unemployed. It is her contention that she cannot maintain substantially gainful employment due to her service-connected spinal disabilities. See August 2014 Veteran’s Application for Increased Compensation Based on Unemployability. Social Security Administration (SSA) records reflect that the Veteran was granted disability benefits in a November 2016 decision due to a degenerative disc disease of the lumbar and thoracic spine, and depressive disorder. A March 2015 VA back examination indicates the Veteran’s lumbar and thoracic condition would not allow for physical or sedentary employment. The examiner indicated the Veteran is able to sit deviated to one side for around 30 minutes before having to constantly change positions. She can walk short distances of around 50 feet before needing to sit and stand for 15 minutes before needing to sit down. Also, she can carry/lift light weight for short periods of time. The Veteran was afforded another VA back examination in January 2020. The examiner opined that her condition affected her ability to work. The examiner noted she stopped working in May 2013 as she was unable to get off the floor due to thoracic spine pain. In January 2020, the Veteran also underwent a VA neck examination. The examiner also found her cervical spine condition impacted her ability to work because neck pain limits her ability to type, reaching out bothers her, and she leans back when sitting. The final determination with respect to a Veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of her service-connected impairments, the Board is persuaded that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disability since March 5, 2015. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to service connection for cervical radiculopathy, left upper extremity, is remanded. In the JMPR, the parties to the appeal before the Court agreed that the Board erred in relying on a March 2015 VA examination because the examination report was not based on consideration of the Veteran’s prior medical history. Specifically, the March 2015 examiner concluded that “[t]here is not sufficient evidence to support a diagnosis of [upper extremity] radiculopathy.” However, the examiner failed to discuss an April 2007 emergency department record which noted an assessment of cervicalgia with cervical radiculopathy. The parties found that the examiner’s opinion was inadequate and, as such, the Board must order the AOJ to provide the Veteran with an adequate examination that adequately addresses the Veteran’s relevant history, particularly the April 2007 emergency department record. In light of the foregoing, additional development is required. 2. Entitlement to a TDIU prior to March 5, 2015 is remanded. The Veteran has contended that she has been unable to secure or follow a substantially gainful occupation due to her service-connected disabilities since May 4, 2013, that is, the date following her most recent full-time employment as a clinical trial manager. See VA Form 8940 (August 2014). From May 4, 2013, to March 5, 2015, the Veteran’s combined disability rating was 100 percent until May 31, 2014, and 40 percent from June 1, 2014, to March 4, 2015. Accordingly, her claim turns on the severity of her disabilities during the period from June 1, 2014, to March 4, 2015. During that period, she was in receipt of service connection for a low back disability, rated 20 percent disabling, and a cervical spine disability, rated 20 percent disabling prior to August 4, 2014, and 30 percent thereafter. The evidence suggests that the Veteran’s service-connected disabilities may have precluded her from obtaining or maintaining employment consistent with her education and occupational experience. Indeed, from 2007 to 2014, the Veteran performed clinical research. Following her spinal surgery in 2013, available treatment records show that the Veteran experienced a long recovery, and that pain continued long after surgery. Initially, she treated the pain with opiates. After weening off the opiates, she treated with cannibis and other non-opiate pain medications. During the March 2015 VA examination, the Veteran gave a history of severe daily flareups, which she treated with cannibis. Critically, the examiner acknowledged that most employers would not accept her cannibis use. The examiner further noted that the Veteran’s spinal disabilities impaired her ability to walk more than 50 feet or stand more than 15 minutes. In a December 2014 statement, the Veteran’s brother, sister, and brother-in-law reported that due to her serious back limitations, he has to drive her to appointments, get her groceries, clean her house, and that he put her house up for sale as she can no longer maintain it. In sum, the evidence pertaining to the period between June 1, 2014, to March 4, 2015, shows that the Veteran’s service-connected disabilities resulted in serious physical impairments (ie, weightbearing, standing, and walking) and pain, which was treated with cannibis. The Board acknowledges that the Veteran’s medically prescribed cannibis use would impose serious barriers to potential employment. When coupled with the aforementioned physical impairments to activities of daily living, the Board finds that the evidence suggests that her service-connected spinal disabilities may have been so severe as to preclude employment consistent with her education and occupational experience as a clinical researcher. Prior to March 5, 2015, the Veteran does not meet the schedular requirements for the assignment of a TDIU under 38 C.F.R. § 4.16(a). Where a claimant does not meet the schedular requirements of 38 C.F.R. § 4.16(a), a TDIU may be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board has no authority to assign a TDIU rating under 38 C.F.R. § 4.16(b) in the first instance. Rather, the claim must be referred to Director of VA’s Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted). Here, the Board finds that a remand is required for such referral. See 38 C.F.R. § 4.16(b). This issue may also be dependent on the outcome of the claim for service connection for left upper extremity radiculopathy. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination to determine the nature and etiology of her claimed radiculopathy of the left upper extremity. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s claimed radiculopathy of the left upper extremity had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner must discuss the medical significance, if any, of the April 2007 emergency department record which noted an assessment of cervicalgia with cervical radiculopathy. A complete medical rationale for all opinions expressed must be provided. 3. The issue of TDIU for the period prior to March 5, 2015, should be referred to the Director, Compensation Service, for extra-schedular consideration. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be re-adjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Joshua Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.