Citation Nr: 21008787 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-06 707 DATE: February 18, 2021 ORDER Entitlement to an initial rating of 30 percent and no higher for cervical strain is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate rating of 20 percent and no higher for radiculopathy of the left upper extremity from December 7, 2009 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate rating of 20 percent and no higher for radiculopathy of the right upper extremity from December 7, 2009 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 20 percent for radiculopathy of the left upper extremity from November 17, 2020 is denied. Entitlement to a rating higher than 20 percent for radiculopathy of the right upper extremity from November 17, 2020 is denied. REMANDED Entitlement to an initial rating higher than 10 percent prior to October 28, 2019 and higher than 20 percent thereafter is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, his cervical strain is manifest by pain during flare-ups that causes the functional equivalent of forward flexion limited to 15 degrees or less. 2. The Veteran has radiculopathy of the left upper extremity is manifest by mild incomplete paralysis of the minor extremity from December 7, 2009. 3. The Veteran has radiculopathy of the right upper extremity is manifest by mild incomplete paralysis of the major extremity from December 7, 2009. 4. The Veteran’s radiculopathy of the left upper extremity is manifested by no more than mild incomplete paralysis of the minor extremity from November 17, 2020. 5. The Veteran’s radiculopathy of the right upper extremity is manifest by no more than mild incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent and no higher for cervical strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a separate disability rating of 20 percent and no higher for radiculopathy of the left upper extremity have been met from December 7, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510. 3. The criteria for a separate disability rating of 20 percent and no higher for radiculopathy of the right upper extremity have been met from December 7, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left upper extremity from November 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510. 5. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right upper extremity from November 17, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to June 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2014. A transcript of that hearing is of record. These matters were denied by the Board in June 2017. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the June 2017 Board decision. These matters were remanded several times, most recently in October 2020. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A December 2020 rating decision assigned a separate compensable rating of 20 percent each for the left and right upper extremities, effective November 17, 2020. The ratings for these disabilities are part of the increased rating claim for the cervical spine disability and is before the Board. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 1. Entitlement to a rating of 30 percent and no higher for cervical strain The Veteran contends that he is entitled to a higher rating because during flare-ups he experiences intense pain that impairs his movement. The Veteran’s cervical strain is rated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the 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 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). This case has been returned from the Court and remanded several times by the Board in an attempt to determine the Veteran’s range of motion during flare-ups. Unfortunately, such range of motion readings have not been obtained. Both the October 2019 and November 2020 VA examinations indicated no further limitation of motion during flare-ups. This finding is inconsistent with the Veteran’s lay statements describing his flare-ups. As early as January 2010, the Veteran reported that he had to leave work early on multiple occasions due to neck pain. In a November 2013 VA examination, the Veteran described flare-ups as causing severe pain in the neck such that he has taken multiple sick days due to neck pain. The December 2015 VA examination indicates that the Veteran calls into work sick due to back/neck pain twice a month on average. In the October 2019 examination he indicated that during flare ups range of motion is preserved but that moving his neck is so painful that he tries to avoid movement if possible. Although this statement is not entirely clear, it appears that the Veteran indicates he can technically force himself to move his neck during flare up but that it is so painful to do so that functionally he is limited in motion. The Veteran went on to describe an incident when he suddenly experienced a painful flare-up when he turned his head while driving, and found himself unable to drive such that his wife took over. This is a significant level of functional impairment and is not accurately described by the October 2019 examiner’s finding of no additional limitation during flare-ups. In the November 2020 exam, the Veteran indicated that during acute pain flares of the neck he has difficulty with activities that involve frequent extending, bending, leaning, and twisting activities of the neck, which is inconsistent with the November 2020 examiner’s finding that his range of motion during flare-ups is the same as it is at any other point. In light of the fact that VA has not been able to obtain an accurate description of the Veteran’s range of motion during flare-ups after multiple attempts, and the fact that the Veteran has already been assigned a 20 percent rating throughout the period on appeal, the Board will resolve doubt in the Veteran’s favor and find that the extreme pain such that the Veteran avoids movement as much as possible and is unable to drive is the functional equivalent of limitation to 15 degrees or less of forward flexion. Therefore, the Board finds that the Veteran’s severe pain during flare-ups and the associated functional impairment warrants the assignment of a rating of 30 percent. Although the Board recognizes that accurate functional range of motion readings during times of flare-ups have not been obtained, 30 percent is the highest rating available for limitation of motion of the cervical spine, which means that remand for a new examination cannot result in the assignment of a higher rating. A rating higher than 30 percent is not warranted because there is no indication of unfavorable ankylosis of the entire cervical spine at any point in the record. Even if the Veteran’s description of his experiences during flare-ups were interpreted as meaning that he was completely unable to move his neck, such limitation is the equivalent of favorable ankylosis, and is thus contemplated by the 30 percent rating assigned. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. There is no indication in the record that the Veteran has intervertebral disc syndrome (IVDS). To the extent that the Veteran argued at his September 2014 hearing that the days he called off sick from work because of his neck were incapacitating episodes, the Board notes that the rating schedule specifically defines incapacitating episodes 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The Veteran acknowledged in his September 2014 hearing, and the record reflects, that he has never been prescribed bed rest by a physician because of his cervical spine disability. Therefore, there is no support for a finding of incapacitating episodes due to the neck for VA rating purposes, much less incapacitating episodes lasting at least 4 weeks as would be required for a higher rating for IVDS. The Board thus resolves doubt in the Veteran’s favor and finds that he is entitled to a rating of 30 percent and no higher throughout the period on appeal. 2. Entitlement to a separate rating of 20 percent and no higher for radiculopathy of the left upper extremity from December 7, 2009 is granted 3. Entitlement to a separate rating of 20 percent and no higher for radiculopathy of the right upper extremity from December 7, 2009 is granted The Veteran contends that his cervical spine disability has caused intermittent numbness or weakness and shooting pain in the bilateral upper extremities. The Board finds that the Veteran is entitled to a separate rating of 20 percent and no higher for radiculopathy of left upper extremity and radiculopathy of the right upper extremity respectively. A December 2020 rating decision granted service connection for bilateral upper extremity radiculopathy and assigned a 20 percent rating for each upper extremity effective November 17, 2020. Review of the record indicates that a 20 percent rating for each upper extremity is warranted from December 7, 2009, the date of claim. Paralysis of the upper radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8510. 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 disabling for the major extremity and 30 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. 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 the December 7, 2009 informal claim, the Veteran claimed an increased rating for the cervical spine and noted feeling numb at times. Radicular symptoms continued to be noted throughout the period on appeal. Although a January 2010 VA examination found normal neurological testing, the Veteran reported sharp neck pain that occasionally radiates to the left shoulder. In a July 2011 VA treatment note, the Veteran reported numbness to both arms and hands for the past few years, but almost constant over the past two months. An October 2011 VA examination diagnosed the Veteran with bilateral upper extremity cervical radiculopathy. The Veteran reported of numbness and tingling in his arms, and weakness in his hands. The examiner found mild constant pain in the bilateral upper extremities, moderate intermittent pain in the bilateral upper extremities, moderate bilateral paresthesias and/or dysesthesias, and mild bilateral numbness in the bilateral upper extremities. Strength testing was normal with the exception of bilateral wrist extension, which was rated as 4/5 for active movement against some resistance. The Veteran had no muscle atrophy, normal reflex exam, and normal sensory exam. EMG testing was normal. The examiner concluded that the Veteran’s symptoms were consistent with cervical radiculopathy, but the EMG was negative for nerve conduction abnormalities, so there was no current evidence that the Veteran’s cervical spine condition caused his bilateral upper extremity complaints. This examination is thus contradictory, diagnosing the Veteran with bilateral upper extremity cervical radiculopathy while simultaneously finding no evidence of such a diagnosis. The Veteran continued to complain of radicular symptoms such as numbness and radiating pain in VA and private treatment records. A November 2013 VA examination found no signs or symptoms of radiculopathy, but noted the Veteran’s report of intermittent numbness and tingling in the left arm and hand. May 2015 and December 2015 VA examinations of the cervical spine found no signs or symptoms of radiculopathy, but the November 2020 VA examination diagnosed cervical radiculopathy. There is no indication in the November 2020 examination or elsewhere in the record that the Veteran had a positive EMG test at any point prior to the November 2020 examination. The instructions on the examination report itself indicates that EMG studies are rarely required to diagnose radiculopathy. This casts further doubt on the October 2011 examination finding that there was no evidence that the cervical spine condition caused the Veteran’s upper extremity complaints based solely upon the negative EMG test. The Board must resolve doubt in the Veteran’s favor, and as such will recognize the October 2011 diagnosis of cervical radiculopathy despite the negative EMG test. In light of the fact that the Veteran has repeatedly complained of bilateral radicular symptoms throughout the period on appeal, starting with the complaint, the Board finds that it is appropriate to assign a 20 percent rating for mild radiculopathy of each upper extremity from the date of claim, December 7, 2009. A rating higher than 20 percent is not warranted because the Veteran’s radiculopathy was not consistently detectable by objective testing, and thus cannot be considered more than mild. The Board assigns a separate rating of 20 percent each but no higher for radiculopathy of right and left upper extremities effective December 7, 2009. 4. Entitlement to a rating higher than 20 percent for radiculopathy of the left upper extremity from November 17, 2020 5. Entitlement to a rating higher than 20 percent for radiculopathy of the right upper extremity from November 17, 2020 The Veteran contends that he should receive a rating higher than 20 percent each for radiculopathy of the right and left upper extremities. The November 17, 2020 VA examination notes normal strength testing, normal reflexes, and no muscle atrophy. Sensory examination revealed that the Veteran had decreased light touch sensation in the right and left hands/fingers. The Veteran’s symptoms included mild paresthesias and/or dysesthesias bilaterally, and mild numbness bilaterally. The examiner checked to boxes for involvement of the upper, middle, and lower radicular nerves, and indicated that the severity of the radiculopathy was mild. The medical record does not distinguish symptoms of radiculopathy of the upper radicular group from symptoms of the middle or lower radicular group. The November 17, 2020 sensory examination indicated that decreased light touch sensation of the bilateral hands/fingers involved C6-8, and do not separate symptoms associated with the upper (C5/C6), middle (C7) and lower (C8/T1) nerve groups. Assigning separate ratings for the upper, middle, and lower radicular groups 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. For this reason, the Veteran is not entitled to separate compensable ratings for the upper, middle, and lower radicular groups. As the rating criteria for all three nerve roots are identical, there is no benefit to the Veteran in attempting to switch the DC that the Veteran’s radiculopathy is rated under from paralysis of the upper radicular group to the middle or lower group. As the Veteran’s radiculopathy does not affect muscle strength or reflexes, and as the Veteran’s symptoms are consistently characterized as mild in the examination, the Board finds no basis to describe the Veteran’s bilateral radiculopathy of the upper extremities as moderate. Therefore, entitlement to a rating higher than 20 percent from November 17, 2020 is denied for the left upper extremity and right upper extremity respectively. REASONS FOR REMAND Entitlement to an initial rating higher than 10 percent prior to October 28, 2019 and higher than 20 percent thereafter is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding this issue. This claim has been remanded multiple times to obtain range of motion measurements during periods of flare-up based upon the Veteran’s lay statements. Unfortunately, the November 2020 VA examination indicated that the Veteran’s range of motion during flare-ups is the same as his range of motion after repeated use over time and the range of motion at the time of examination. This finding is inconsistent with the Veteran’s lay statements. In the November 2020 examination he reported that during acute pain flares, he has difficulty with activities that involve prolonged sitting, standing, walking, bending, twisting, leaning, and lifting. However, by assigning the same range of motion measurements during flare-up as during the examination, the examiner indicates no additional functional limitation during flare-ups. It is unclear what such a finding can be based upon considering that the Veteran specifically reported difficulty with bending. Another remand is required that considers the Veteran’s competent lay statements. Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In doing so, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is advised that a finding that the Veteran’s range of motion during periods of flare up is the same as when not in a period of flare up is inconsistent with the Veteran’s lay statements in the November 2020 examination, which indicate that he has difficulty with bending and twisting during flare-ups. The examiner must consider the Veteran’s competent lay statements when determining range of motion readings during flare-ups. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.