Citation Nr: 21010491 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 08-14 086 DATE: February 25, 2021 ORDER An initial rating for cervical spine degenerative joint disease (DJD), status post fusion, higher than 10 percent prior to May 6, 2017, and higher than 30 percent, thereafter, is denied. An initial rating higher than 20 percent for right upper extremity (RUE) radiculopathy prior to November 21, 2019, is denied. An initial 40 percent rating for RUE radiculopathy from November 21, 2019, is granted. An initial rating higher than 20 percent for left upper extremity (LUE) radiculopathy is denied. An initial 30 percent rating for LUE radiculopathy from November 21, 2019, is granted. FINDINGS OF FACT 1. Prior to May 6, 2017, the Veteran’s cervical spine DJD was not manifested by forward flexion of 30 degrees or less, combined range of motion of 170 degrees or less, or abnormal spinal contour; from May 6, 2017, unfavorable ankylosis was not demonstrated. 2. Prior to November 21, 2019, RUE radiculopathy was manifested by mild incomplete paralysis. 3. From November 21, 2019, RUE radiculopathy was manifested by moderate incomplete paralysis. 4. Prior to November 21, 2019, LUE radiculopathy was manifested by mild incomplete paralysis. 5. From November 21, 2019, LUE radiculopathy was manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to May 6, 2017, and higher than 30 percent thereafter, for cervical spine DJD, status post fusion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5242. 2. Prior to November 21, 2019, the criteria for a disability rating higher than 20 percent for RUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 3. From November 21, 2019, the criteria for an initial 40 percent rating for RUE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 4. Prior to November 21, 2019, the criteria for a disability rating higher than 20 percent for LUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 5. From November 21, 2019, the criteria for an initial 30 percent rating for LUE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Air Force from July 1986 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision. The procedural history of this case is lengthy, but it was most recently remanded by the Board in April 2017 and June 2019 for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Cervical Spine DJD The Veteran’s cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Prior to May 6, 2017, he is assigned a 10 percent rating. Under the General Rating Formula, a higher 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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). The Board finds that a rating higher than 10 percent is not warranted prior to May 6, 2017. First, forward flexion of the cervical spine was never found to be 30 degrees or less. VA examinations in October 2006 and August 2013 documented at least 40 degrees of flexion, even when accounting for the onset of pain, repetitive testing, and the presence of flare-ups. VA outpatient treatment records showed “normal” flexion in July 2007, November 2007, September 2008 and January 2012. Additional records in August 2015 and February 2016 specifically documented 45 degrees of flexion. Second, combined range of motion was never found to be 170 degrees or less. Combined range of motion means the total range of motion from flexion, extension, left lateral flexion, right lateral flexion, left rotation and right rotation. The October 2006 and August 2013 VA examinations documented 320 degrees and 255 degrees of combined range of motion, respectively, including when accounting for pain, repetitive testing and flare-ups. VA treatment records do not show complete findings for combined range of motion because they do not include left or right rotation. However, even without rotation measurements, combined range of motion was 180 degrees in August 2015 and 160 degrees in February 2016. Third, the evidence does not show that the Veteran’s cervical spine disability was manifested by any abnormal spinal contour. X-rays and MRIs from October 2006, July 2008, July 2010, July 2012, and August 2013 show the presence of DJD and the Veteran’s spinal fusion hardware, but not abnormal spinal contour or curvature was noted. For these reasons, a rating higher than 10 percent is not warranted prior to May 6, 2017. From May 6, 2017, the Veteran is assigned a 30 percent 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 higher 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the cervical 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 of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. A May 2017 VA examination found that favorable ankylosis was present but unfavorable was not. A November 2019 VA examination said that no ankylosis was present. The Veteran’s VA treatment records from this period do not reference any ankylosis or any of the above-listed manifestations of unfavorable ankylosis. Because unfavorable ankylosis is not present, a higher 40 percent rating is not applicable. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the 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. As part of the General Rating Formula, any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The ratings for the Veteran’s bilateral upper extremity radiculopathy disabilities are discussed below. RUE radiculopathy prior to November 21, 2019 The Veteran is right-handed, and therefore his right upper extremity is considered the “major” extremity for rating purposes. The Veteran’s RUE radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510, which addresses paralysis of the upper radicular group. Under these criteria, mild incomplete paralysis is rated as 20 percent for the major 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. 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 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 mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” Prior to November 21, 2019, the Board finds that a rating higher than 20 percent is not warranted. Regarding impairment of motor functions, strength in the RUE during this period was at least 4/5, as seen in VA records from July 2007, November 2007 and January 2012. Most of the evidence, including the October 2006, January 2008, August 2013 and May 2017 VA examinations, as well as VA records from January 2008, April 2015, February 2016 and November 2017, showed normal (5/5) strength. These intermittent findings of slightly reduced strength, with otherwise normal findings, equate to no more than a mild level of impairment. Regarding trophic changes, none were shown at any time during the appeal period. Regarding sensory disturbance, the August 2013 VA examination documented decreased sensation in the right forearm, and VA records from August 2015 noted slightly diminished sensation in the RUE generally. Sensation was specifically noted to be normal or intact during the October 2006, January 2008, and May 2017 VA examinations, as well as in July 2007, November 2007, January 2008, January 2012, April 2015 and November 2017 VA treatment records. Again, these intermittent findings of slightly reduced sensation, with otherwise normal findings, equate to no more than a mild level of impairment. Regarding loss of reflexes, the October 2006 VA examination, August 2015 VA records, and May 2017 VA examination documented diminished (1+) reflexes. Otherwise, reflexes were recorded as normal (2+) on multiple occasions during the appeal period. As above, this equates to only a mild level of impairment. Regarding muscle atrophy, none was shown during the appeal period. Based on the above, the Board finds that the disability is primarily manifest by intermittent findings of slightly reduced strength, reflexes, and sensation, with normal findings for each factor prevalent during this appeal period. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In making this determination, the Board acknowledges the Veteran’s reports regarding his symptoms and their functional impact. Notably, in a February 2017 statement, he reported how his condition affect activities such as handwriting, toileting, holding things, and driving. However, impairment of these activities is already contemplated by the assigned rating, which is otherwise consistent with the objective findings discussed above. 38 C.F.R. § 4.10. RUE radiculopathy from November 21, 2019 From November 21, 2019, the Board finds that a higher 40 percent rating is warranted. The VA examination performed on that date noted moderate intermittent pain, moderate paresthesias, and an overall moderate level of radiculopathy in the RUE. This moderate level of impairment corresponds to a 40 percent rating for the major extremity under DC 8510. A higher 50 percent rating is not warranted because the examiner did not note any “severe” symptoms or an overall “severe” level of impairment. Moreover, the objective findings for strength, reflexes and sensation were all normal, and no muscle atrophy was present. LUE radiculopathy prior to November 21, 2019 The Veteran is right-handed, and therefore his LUE considered the “minor” extremity for rating purposes. The Veteran’s LUE radiculopathy is also rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510, which addresses paralysis of the upper radicular group. Under these criteria, mild incomplete paralysis is rated as 20 percent for the minor extremity. Moderate incomplete paralysis is rated as 30 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the minor extremity. Prior to November 21, 2019, the Board finds that a rating higher than 20 percent is not warranted. Regarding impairment of motor functions, strength in the LUE during this period was at least 4/5, as seen in VA records from July 2007, November 2007 and January 2012. Most of the evidence, including the October 2006, January 2008, August 2013 and May 2017 VA examinations, as well as VA records from January 2008, April 2015, February 2016 and November 2017, showed normal (5/5) strength. These intermittent findings of slightly reduced strength, with otherwise normal findings, equate to no more than a mild level of impairment. Regarding trophic changes, none were shown at any time during the appeal period. Regarding sensory disturbance, sensation was specifically noted to be normal or intact during each objective test from this period, including the October 2006, January 2008, August 2013 and May 2017 VA examinations, as well as in July 2007, November 2007, January 2008, January 2012, April 2015 and November 2017 VA treatment records. In July 2008 and September 2008, the Veteran reported subjective symptoms of numbness and tingling Again, these intermittent findings of slightly reduced sensation, with otherwise normal findings, equate to no more than a mild level of impairment. Regarding loss of reflexes, the October 2006 VA examination, August 2015 VA records, and May 2017 VA examination documented diminished (1+) reflexes. Otherwise, reflexes were recorded as normal (2+) on multiple occasions during the appeal period. As above, this equates to only a mild level of impairment. Regarding muscle atrophy, none was shown during the appeal period. Based on the above, the Board finds that the disability is primarily manifest by intermittent findings of slightly reduced strength, reflexes, and sensation, with normal findings for each factor prevalent during this appeal period. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In making this determination, the Board acknowledges the Veteran’s reports regarding his symptoms and their functional impact. However, the assigned rating inherently contemplates subjective pain and other symptoms, and those symptoms alone do not suggest a level of impairment beyond the objective findings discussed above. LUE radiculopathy from November 21, 2019 From November 21, 2019, the Board finds that a higher 30 percent rating is warranted. The VA examination performed on that date noted moderate intermittent pain, moderate paresthesias, and an overall moderate level of radiculopathy in the LUE. This moderate level of impairment corresponds to a 30 percent rating for the minor extremity under DC 8510. A higher 40 percent rating is not warranted because the examiner did not note any “severe” symptoms or an overall “severe” level of impairment. Moreover, the   objective findings for strength, reflexes and sensation were all normal, and no muscle atrophy was present. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.