Citation Nr: 21009324 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-10 374 DATE: February 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of a healed right wrist fracture is denied. Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine prior to December 15, 2014 is denied. Entitlement to a rating of 30 percent, but no more, for DDD of the cervical spine beginning December 15, 2014 is granted. Entitlement to an initial rating in excess of 50 percent for radiculopathy of the right upper extremity (RUE) is denied. FINDINGS OF FACT 1. The Veteran’s healed right wrist fracture has caused painful limitation of motion, but no ankylosis. 2. Prior to December 15, 2014, the Veteran’s DDD of the cervical spine manifested as forward flexion limited to 23 degrees with no guarding or muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour, or abnormal kyphosis. 3. Beginning December 15, 2014, the Veteran’s DDD of the cervical spine manifested as forward flexion limited to 15 degrees or less, with no ankylosis. 4. The Veteran’s radiculopathy of the RUE has manifested as severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a healed right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5215 (2019). 2. The criteria for an initial rating in excess of 20 percent for DDD of the cervical spine prior to December 15, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5242 (2019). 3. The criteria for a rating of 30 percent, but no more, for DDD of the cervical spine beginning December 15, 2014 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5242 (2019). 4. The criteria for an initial rating in excess of 50 percent for radiculopathy of the RUE have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8510, 8610 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to October 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011, January 2015, and November 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2018. A transcript of the hearing is associated with the electronic claims file. The Board issued two prior remands on these claims in September 2018 and June 2019. Following an appeal to the United States Court for Appeals for Veterans Claims (Court), in July 2019 a Joint Motion to Modify was entered, modifying the Board’s September 2018 remand. The Board issued a third remand on these claims in March 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  DC 5215 is used for limitation of motion of the wrist. A 10 percent rating is warranted for palmar flexion limited in line with forearm or for dorsiflexion less than 15 degrees. A 10 percent rating is the highest rating available under DC 5215 for both the major and minor joint (dominant and nondominant), with the next higher rating coming under DC 5214 for ankylosis of the wrist, rated between 20 and 50 percent. Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the cervical spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 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 limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A rating of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. Finally, a rating of 100 percent is warranted to unfavorable ankylosis of the entire spine. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The Veteran’s radiculopathy of the RUE is evaluated under DC 8610 for neuritis or DC 8510 for paralysis of the upper radicular group 5th and 6th cervicals. Under both DC 8610 and 8510, for the dominant hand, a rating of 20 percent is warranted for mild incomplete paralysis; a rating of 40 percent is warranted for moderate incomplete paralysis; and a rating of 50 percent is warranted for severe incomplete paralysis. Finally, a rating of 70 percent is warranted for complete paralysis of the major (dominant) shoulder or elbow. 1. Entitlement to a rating in excess of 10 percent for residuals of a right wrist fracture. The Veteran was initially granted service connection for a healed fracture of the right wrist in a February 1978 rating decision, effective October 4, 1977, evaluated at 0 percent. In February 2011, the Veteran filed an application for an increased rating of his right wrist condition. The Veteran was given a VA examination in April 2011. Here, he was found to have right dorsiflexion limited to 58 degrees and right palmar flexion limited to 60 degrees. Objective evidence of pain with active motion was noted on the right side, as well as objective evidence of pain following repetitive motion, although such did not result in additional range of motion limitation. The examiner found no ankylosis of the right wrist. Following this examination, the RO issued an August 2011 rating decision wherein the Veteran’s healed fracture of the right wrist was increased to 10 percent, effective February 8, 2011, the date of his application for an increased rating. The RO explained that this rating was rendered not because the Veteran’s limitation of motion met the criteria for a 10 percent rating under DC 5215, but because the evidence showed functional loss due to pain, which should be rated at the minimum compensable rating. The Veteran appealed this rating and in December 2014 he was given another VA examination. Here, the examiner found the Veteran’s palmar flexion to be to 65 degrees with objective evidence of painful motion beginning at 0 degrees, and his dorsiflexion to be limited to 60 degrees, also with objective painful motion beginning at 0 degrees. The examiner found no ankylosis of the right wrist. The Board notes that these findings are also consistent with a 10 percent rating under DC 5215. The Veteran was given another VA examination for his wrist in May 2016. Here, the examiner found his palmar flexion to be limited to 50 degrees and his dorsiflexion to be limited to 40 degrees. Pain was noted on examination, but the examiner noted that this pain did not result in or cause functional loss. The examiner found the Veteran was unable to perform repetitive-use testing with at least three repetitions, but also noted suboptimal effort. Flareups were noted as “acute paralyzing pain that radiates from his fingers on his right hand to his right arm” occurring twice weekly and lasting for a minute. No ankylosis of the right wrist was found. The Board again notes that these findings are consistent with a 10 percent rating under DC 5215. In September 2018 the Board remanded the claim, instructing the RO to obtain outstanding records from the Social Security Administration as well as additional VA treatment records, and to readjudicate the claim after such records were obtained. The Board notes that in April 2019 the Veteran, through his representative submitted private treatment records wherein it was noted in September 2018 that the Veteran’s range of motion of the right wrist was normal. The Board again remanded the claim in June 2019 instructing the RO to consider these additional private treatment records submitted by the Veteran’s representative. Following a July 2019 Joint Motion to Modify from the Court, the Board issued another remand in March 2020 in compliance with the Court’s Joint Motion. The Veteran was given another VA examination for his wrist in September 2020. Here, the examiner found both his palmar flexion and dorsiflexion to be limited to 15 degrees due to pain and lack of endurance. The examiner found no ankylosis of the right wrist. Finally, the Veteran was given another VA examination for his wrist in October 2020. Here, the examiner found the Veteran’s palmar flexion to be limited to 60 degrees and his dorsiflexion to be limited to his 50 degrees. Pain was noted on examination that causes functional loss, with the examiner finding the Veteran’s palmar flexion to be further limited to 50 degrees and his dorsiflexion to be further limited to 40 degrees with pain. The examiner found the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion noted after three repetitions. The examiner found no ankylosis of the right wrist. The Board again finds that both of these examinations are consistent with a 10 percent rating under DC 5215. An increased rating of 30 percent under DC 5214 requires ankylosis of the wrist, which the Veteran does not have. Accordingly, entitlement to a rating in excess of 10 percent for residuals of a healed right wrist fracture is denied. 2. Entitlement to an initial rating in excess of 20 percent for DDD of the cervical spine prior to December 15, 2014. 3. Entitlement to a higher rating for DDD of the cervical spine beginning December 15, 2014. In February 2011, the Veteran filed an application requesting to reopen his claim for service connection for a “neck – cervical stenosis” condition. The Veteran was given a VA examination for such in April 2011. Here, the examiner diagnosed “cervical degenerative joint disease throughout, with subluxation and chronic desiccation at C5-6 that is causing a moderately severe right upper extremity radiculopathy. Chronic, progressive.” The examiner found the Veteran’s forward flexion of the cervical spine to be limited to 23 degrees, with objective evidence of pain on active range of motion noted. Objective evidence of pain following repetitive motion was also noted, with no additional limitations after three repetitions of range of motion. The examiner found the Veteran to have spasm and guarding of the cervical spine which was not severe enough to be responsible for the abnormal gait noted or abnormal spinal contour, but no kyphosis or ankylosis of the cervical spine was found. Despite this examination, the RO issued an August 2011 rating decision denying the Veteran’s claim for service connection finding no new and material evidence had been provided to reopen the claim. The Veteran appealed this decision and provided additional evidence. In December 2014 the Veteran was given another VA examination for his cervical spine. Here, the examiner diagnosed DDD of the cervical spine and found the Veteran’s forward flexion to be limited to 40 degrees, with evidence of objective painful motion beginning at 10 degrees. No ankylosis was indicated. The RO issued another rating decision in January 2015, this time granting service connection for DDD of the cervical spine, effective February 8, 2011, the date of the Veteran’s application to reopen the claim. The RO evaluated the DDD as 20 percent from February 8, 2011 to December 14, 2014, and only 10 percent beginning December 15, 2014, the date of the Veteran’s most recent VA examination. The Board finds the initial rating of 20 percent to be consistent with the Veteran’s April 2011 VA examination findings. However, beginning December 15, 2014, the date of the Veteran’s second VA examination for his cervical spine, a rating of 30 percent is warranted as the examiner found objective evidence of painful motion beginning at 10 degrees. Pursuant to DC 5242, a rating of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, and a rating of 30 percent is warranted for forward flexion limited to 15 degrees or less. Accordingly, entitlement to an initial rating in excess of 20 percent for DDD of the cervical spine prior to December 15, 2014 is denied. However, entitlement to a rating of 30 percent for DDD of the cervical spine beginning December 15, 2014, is granted. The Board notes that a rating of 30 percent under DC 5242 for the cervical spine is also warranted for favorable ankylosis, thus, the Veteran is only entitled to a higher rating of 40 percent, if he can show he suffers from unfavorable ankylosis of the entire cervical spine. The Veteran was given another VA examination for his cervical spine in May 2016. Here, the examiner found the Veteran’s forward flexion of the cervical spine to be limited to 15 degrees after repetitive-use testing. The examiner found no ankylosis of the spine. This is consistent with a 30 percent rating under DC 5242. Based on these findings, the RO issued a June 2016 rating decision, increasing the Veteran’s DDD of the cervical spine evaluation to 30 percent, effective May 18, 2016. The Veteran appealed this rating up to the Board. In June 2018, the Veteran, through his representative, provided additional private treatment records. In a newly provided treatment record, dated November 2015 it is noted “C spine flexion 35 degrees, extension 25 degrees, no paraspinal spasm noted, mild paraspinal muscle tenderness.” The Board notes that this treatment record does not indicate whether painful motion was detected in the range of motion testing. In September 2018 the Board remanded the claim, instructing the RO to obtain outstanding records from the Social Security Administration as well as additional VA treatment records, and to readjudicate the claim after such records were obtained. The Board notes that in April 2019 the Veteran, through his representative submitted additional private treatment records. The Board again remanded the claim in June 2019 instructing the RO to consider these additional private treatment records submitted by the Veteran’s representative. Following a July 2019 Joint Motion to Modify from the Court, the Board issued another remand in March 2020 in compliance with the Court’s Joint Motion. The Veteran was given another VA examination for his cervical spine in September 2020. Here, the examiner again found the Veteran’s forward flexion of the cervical spine to be limited to 15 degrees following repetitive motion. However, no ankylosis of the spine was found. The Board notes these findings are consistent with a 30 percent rating under DC 5242. Finally, the Veteran was given another VA examination for his cervical spine in October 2020. Here, the examiner found the Veteran’s forward flexion of the cervical spine to be limited to 35 degrees with pain, and his combined range of motion of the cervical spine to be 215 degrees with pain. No guarding or muscle spasm was found, nor was ankylosis. The Board notes that these findings are actually more consistent with a 10 percent rating under DC 5242, than the currently assigned 30 percent rating. A review of the additional treatment records does not provide appropriate range of motion testing as required for rating purposes under DC 5242, nor do they support a rating higher than the currently assigned 30 percent rating. The Veteran has undergone several VA examinations of his cervical spine and no ankylosis has been shown. Accordingly, entitlement to a rating of 30 percent, but no more, for DDD of the cervical spine beginning December 15, 2014 is granted. 4. Entitlement to an initial rating in excess of 50 percent for radiculopathy of the RUE. As noted above, in February 2011, the Veteran requested to reopen his claim for service connection for a condition of the “neck - cervical stenosis.” The Veteran was given a VA examination for such in April 2011, wherein the examiner noted that the Veteran’s cervical degenerative joint disease caused “moderately severe right upper extremity radiculopathy.” In December 2014, the Veteran was first given a VA examination for his peripheral nerve conditions. Here, the examiner diagnosed the Veteran with C5-C6 radiculopathy of the RUE. His symptoms were noted as severe constant pain and numbness of the RUE. The examiner opined that the Veteran had mild incomplete paralysis of the RUE of the upper radicular group 5th and 6th cervicals. In a January 2015 rating decision, the RO granted service connection for C5-C6 radiculopathy of the RUE, effective February 8, 2011, evaluated at 20 percent. The Veteran was given another VA examination for his peripheral nerve conditions in May 2016. This time his symptoms were noted as moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the RUE. The examiner opined that the Veteran had mild incomplete paralysis of the RUE radial nerve (musculospiral nerve). In June 2018, the Veteran, through his representative, provided additional private treatment records. In September 2018 the Board remanded the claim, instructing the RO to obtain outstanding records from the Social Security Administration as well as additional VA treatment records, and to readjudicate the claim after such records were obtained. The Board notes that in April 2019 the Veteran, through his representative submitted additional private treatment records. The Board again remanded the claim in June 2019 instructing the RO to consider these additional private treatment records submitted by the Veteran’s representative. Following a July 2019 Joint Motion to Modify from the Court, the Board issued another remand in March 2020 in compliance with the Court’s Joint Motion. The Veteran was given another VA examination for his peripheral nerve conditions in September 2020. Here, the examiner found the Veteran to have severe constant pain, paresthesias and/or dysesthesias, and numbness of the bilateral upper extremities. The examiner opined that the Veteran had severe incomplete paralysis of the bilateral upper extremities in the upper radicular group 5th and 6th cervicals. In an October 2020 VA examination for the Veteran’s cervical spine it was opined that he had moderate radiculopathy of the RUE, but an additional peripheral nerve examination was not completed at this time. In a November 2020 rating decision, the RO increased the Veteran’s evaluation of his C5-C6 radiculopathy of the RUE to 50 percent, effective February 8, 2011, the date of his initial claim. As noted above, under both DC 8510 and DC 8610 a rating of 50 percent is warranted for severe incomplete paralysis of the major (or dominant) nerve group. Here, the evidence establishes that the Veteran is right hand dominant. In order to be granted a higher rating of 70 percent, the Veteran must show complete paralysis of the major nerve group. The Veteran has undergone several VA examinations for his peripheral nerve and cervical spine conditions. At no point has it been opined that the Veteran suffers from complete paralysis. A review of the Veteran’s private treatment records and the other additional treatment records obtained do not support a finding of complete paralysis. Accordingly, an initial rating in excess of 50 percent for radiculopathy of the RUE is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.