Citation Nr: 21007763 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-54 672 DATE: February 10, 2021 ORDER The claim for an increased disability rating in excess of 40 percent for lumbar strain (lumbar disability) is denied. The claim for an increased disability rating in excess of 20 percent for neck strain with C4-5 discectomy and fusion (neck disability) is denied. The claim for an increased disability rating in excess of 20 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is not manifest by ankylosis of any kind or intervertebral disc syndrome (IVDS) requiring doctor-prescribed bedrest. 2. The Veteran’s cervical spine is manifest by forward flexion above 15 degrees without ankylosis or IVDS requiring doctor-prescribed bedrest. 3. The Veteran’s right upper extremity radiculopathy is manifest by no more than mild incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 20 percent for cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for a disability rating in excess of 20 percent for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8511. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to March 1988 and from February 2003 to January 2006. The Veteran provided testimony during a Board hearing in June 2019. A transcript has been added to the claims file. The claim was remanded by the Board in September 2019 and has been returned now, following substantial compliance with the remand orders, for further appellate action. Increased Rating 1. Entitlement to an increased disability rating in excess of 40 percent for lumbar strain (lumbar disability) The Veteran contends that he is entitled to a higher rating, although he does not specify why this is the case. The Board finds that the evidence of record does not support a higher rating in excess of 40 percent for lumbar disability. The Veteran’s lumbar disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbar strain. Under the General Rating Formula for Diseases and Injuries of the Spine, the next highest disability rating, a 50 percent rating, is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In short, as the Veteran is currently rated as 40 percent disabling for his lumbar disability, entitlement to a higher rating will be warranted only if some form of ankylosis is demonstrated. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there has been functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, such manifestations are specifically contemplated in the assignment of a 40 percent disability rating. Even considering the Veteran’s lay reports of symptoms and noted functional loss, including being unable to sit or stand for long periods of time, being unable to pick things off of the floor, and being unable to carry heavy objects, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine, as required by the ratings criteria. The evidence of record, including VA and private treatment records and the Veteran’s lay statements, demonstrates that the Veteran has been able to move her lumbar spine in all directions and that at no point has her lumbar spine been fixed in place to any degree. In addition, each of the three VA examiners in January 2014, April 2016, and January 2020, specifically found that there was no evidence of ankylosis upon examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the 2014 and 2016 VA examiners found that the Veteran did not have IVDS at that time. While the 2020 VA examiner found evidence of IVDS, the examiner concluded after a review of the record and interview of the Veteran that she had not been prescribed bedrest by a doctor. Indeed, the medical evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her lumbar spine disability. The Board concludes that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased disability rating in excess of 20 percent for neck strain with C4-5 discectomy and fusion (neck disability) The Veteran contends that she is entitled to a higher rating for her cervical spine disability, although she has not specifically explained her rationale for her contention. The Board finds that the evidence does not support a finding of an increased disability rating in excess of 20 percent for her neck disability. The Veteran’s neck disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, the next highest disability rating, a 30 percent rating, is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As the Veteran is rated at 20 percent for her neck disability, entitlement to a higher rating will be warranted upon the demonstration of forward flexion limited to 15 degrees or less or some sort of ankylosis of the cervical spine. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for her cervical spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there is functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, including being unable to stand for long periods of time, being unable to pick things off of the floor, and being unable to pick up and/or carry heavy objects, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Regarding forward flexion, the 2014 and 2016 VA examiners found forward flexion possible to 35 and 45 degrees, respectively, without change upon repetition, although neither examiner could provide an opinion as to additional loss due to functional factors without resorting to speculation. However, the 2020 VA examiner found forward flexion was possible to 30 degrees and that functional factors such as pain and flare-ups would further limit flexion to 25 degrees. Furthermore, the evidence of record, including VA and private treatment records and the Veteran’s lay statements, demonstrates that she has been able to move her cervical spine in all directions and that at no point has her cervical spine been fixed in place to any degree. In addition, each of the three VA examiners in January 2014, April 2016, and January 2020, specifically found that there was no evidence of ankylosis upon examination. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the 2014 and 2016 VA examiners found that the Veteran did not have IVDS at that time. While the 2020 VA examiner found evidence of IVDS, the examiner concluded after a review of the record and interview of the Veteran that she had not been prescribed bedrest by a doctor. Indeed, the medical evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for right and left upper extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her cervical spine disability. The Board concludes that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for cervical spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased disability rating in excess of 20 percent for right (major) upper extremity radiculopathy The Veteran contends that she is entitled to an increased disability rating for right upper extremity radiculopathy, although she has not specifically explained that contention. The Board finds that the evidence of record does not demonstrate that an increased disability rating for right upper extremity radiculopathy is warranted. Paralysis of the middle radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity. Complete paralysis with adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In order for an increased disability rating to be assigned for the right upper extremity radiculopathy disability, the evidence must demonstrate at least moderate incomplete paralysis of the middle radicular nerve group. Unfortunately, the evidence is against such a finding. The medical evidence of record, including VA and private treatment as well as VA examinations demonstrate that there was no impairment in motor functions or strength, no trophic changes or atrophy, and no evidence of complete paralysis of the upper radicular nerve group. Regarding sensory disturbance, all three VA examiners found no evidence of decreased sensation to light touch, except for the 2016 examiner’s notation of decreased sensation of the right hand/fingers. Regarding loss of reflexes, the 2014 and 2016 examiners found full reflexes. The 2020 examiner found reflexes full, except for the triceps, which were absent. Regarding pain or other radiculopathy symptoms, the 2014 VA examiner did not find such pain upon examination nor any other symptoms. The 2016 examiner found no evidence of intermittent pain, numbness, or paresthesias and/or dysesthesias and noted the reports of constant pain to be mild. The 2020 VA examiner found constant pain and numbness, which were mild, without any other radiculopathy symptoms. The 2014 VA examiner did not find any evidence of right upper extremity radiculopathy upon examination. While the 2016 and 2020 examiners found such radiculopathy during each examination, each examiner concluded that the right upper middle radicular group radiculopathy was mild. The VA and private treatment of record do not contradict the findings of the VA examiners at that time and do not demonstrate symptoms which more nearly approximate moderate radiculopathy in the right upper extremity. Based on the above, the Board finds that the disability is primarily manifest by intermittent and mild sensory disturbance, pain, and numbness with consistently full reflexes except for the triceps in 2020. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by moderate radiculopathy when considering symptoms such as impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the right upper middle radicular group. The Board acknowledges the lay assertions of symptoms such as pain, numbness, and swelling in her right upper extremity, which she attributes to radiculopathy. However, the Board finds the medical of evidence of record to be more probative because the medical examiners possess the skills and knowledge to properly assess the etiology and severity of the Veteran’s right upper extremity symptoms and they based their findings upon examination and interview of the Veteran as well as a review of the entire record. The Veteran has not been shown to possess the knowledge and skills to properly assess the severity of her symptoms or to determine which symptoms are related to her service-connected disability instead of some other cause. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for right upper extremity radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.B., 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.