Citation Nr: 21014455 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-06 101 DATE: March 12, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for service-connected cervical spine degenerative dis disease is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent for service-connected left upper extremity radiculopathy is denied. Entitlement to a disability rating in excess of 20 percent for service-connected right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disability is manifest by symptoms more closely approximating unfavorable ankylosis of the cervical spine. 2. The Veteran’s left upper extremity radiculopathy is manifest by no more than moderate incomplete paralysis of the major extremity. 3. The Veteran’s right upper extremity radiculopathy is manifest by no more than moderate incomplete paralysis of the minor extremity. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for cervical spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019); (85 Fed. Reg. 76, 453 (November 30, 2020)). 2. The criteria for a disability rating in excess of 30 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 3. The criteria for a disability rating in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to April 1964 in the United States Army. In July 2020, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). In a January 2021 rating decision, the Agency of Original Jurisdiction (AOJ) restored the 30 percent rating for the cervical spine disability, effective the date of the previous reduction. As such, the issue on appeal is entitlement to a rating in excess of 30 percent. During the pendency of the Veteran’s claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzuma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Increased Rating 1. Entitlement to a rating in excess of 30 percent for service-connected cervical spine degenerative disc disease. The Veteran contends that he is entitled to a higher rating because of more severe limitations associated with his service-connected cervical spine disability. The February 2021 changes to the rating criteria for degenerative disc disease pertain to Diagnostic code 5242 and 5243 for intervertebral disc syndrome. The Board finds the both the old and new rating criteria for degenerative disc disease result in the same disability rating for the Veteran. The revised criteria for diagnostic code 5242 contemplate degenerative arthritis and degenerative disc disease other than IVDS and directs consideration of either diagnostic code 5003 or 5010. Under the older version of diagnostic code 5242 only degenerative arthritis of the spine is contemplated with consideration of diagnostic code 5003. However, under either set of criteria the Veteran will ultimately receive the most favorable rating using the General Rating Formula for Diseases and Injuries of the Spine. The Board also notes that there are changes to the diagnostic code 5243 for IVDS, but these only include additional limitations on when this diagnostic code can be used. Furthermore, as noted below the Veteran is not entitled to an increased rating for the old diagnostic code criteria for IVDS. The Veteran’s cervical spine degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the 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 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. 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). The Board finds that assignment of a 40 percent rating is warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, and pain during flare-ups. Considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran’s flare-ups are severe in nature and precipitated by household chores and “looking up, down, or sideways” result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. The Veteran underwent a VA examination in December 2020, specifically to determine the impact of the Veteran’s flare-ups and whether they present a more significant disability picture for the Veteran’s cervical spine. The VA examination notes that the Veteran experiences severe flare-ups that “last for hours…are precipitated by trying to help [his] wife with vacuuming, sweeping, moving furniture, planting items, forcing himself to look up, down, or sideways.” The Veteran described functional loss and functional impairment due to flare-ups including decreased range of motion, difficulty walking, inability to stand up straight, and inability to move his neck which impairs his field of vision. Estimations were provided for the Veteran’s range of motion restrictions due to flare-ups, finding flexion and extension both limited to 15 degrees. The Board finds that when considering the severity and frequency of the Veteran’s flare-ups, unfavorable ankylosis of the cervical spine is approximated. The Veteran’s inability to move his neck, difficulty walking, and impaired field of vision are all contemplated by the 40 percent criteria under Diagnostic Code 5242. Furthermore, while frequency is not specifically documented the Board finds that the fact flare-ups are precipitated by forcing himself to look up, down, or sideways indicates a high frequency of occurrence. The Board also notes that the remaining examination during the period on appeal, December 2018, has been found inadequate due to deficiencies in addressing the Veteran’s cervical spine flare-ups. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to the 40 percent rating for the entire period on appeal. However, even when considering the functional limitation during a flare-up, the Veteran’s symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. There is no evidence, medical or otherwise, to indicate that the Veteran’s entire spine has actual ankylosis, or symptoms that manifest as severe enough to approximate ankylosis of the entire spine. Consideration has also been given to assigning a rating under the old Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, while the Veteran does have IVDS 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. Most recently the Veteran’s December 2020 VA examination clearly indicates he has never received orders for bedrest from a physician. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy in both of his upper extremitas. The ratings for these conditions are discussed below. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, a 40 percent rating, but no higher, is warranted for service-connected cervical spine degenerative disc disease. In denying a higher 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 a disability rating in excess of 30 percent for service-connected left upper extremity radiculopathy is remanded. The Veteran contends that he is entitled to a higher rating because of more severe left upper extremity radiculopathy symptoms. His left arm is the major extremity. Paralysis of the upper and lower radicular groups is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated 90 percent for the major extremity ad 80 percent 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). Regarding impairment of motor functions, the December 2020 VA examination indicates that the Veteran had difficulty lifting items. Regarding sensory disturbance, the December 2020 VA examination indicates that the Veteran had moderate left upper extremity paresthesias and/or dysesthesias. The June 2018 VA cervical spine examination indicates moderate left upper extremity paresthesias and/or dysesthesias and numbness, as well as decreased sensation to light touch in the left shoulder, inner/outer forearm, and hand/fingers. Regarding loss of reflexes, the June 2018 VA cervical spine examination indicates hypoactive left bicep, triceps, and brachioradialis reflexes. Regarding pain, the December 2020 VA examination indicates the Veteran had moderate intermittent left upper extremity pain. The June 2018 VA cervical spine examination indicates moderate intermittent and constant left upper extremity pain. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board acknowledges the lay assertions of the severity of impairment of motor functions, sensory disturbance, loss of reflexes, and pain. However, the Board finds the medical of evidence of record to be more probative because it considers the Veteran’s lay descriptions and physical testing results. 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 30 percent for service-connected left 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. 3. Entitlement to a disability rating in excess of 20 percent for service-connected right upper extremity radiculopathy is denied. The Veteran contends that he is entitled to a higher rating because of more severe right upper extremity radiculopathy symptoms. The Veteran’s right upper extremity radiculopathy is rated under the same Diagnostic Code as his left upper extremity, Diagnostic Code 8513. The criteria for Diagnostic Code 8513 described above is incorporated herein. Regarding impairment of motor functions, the December 2020 VA examination indicates that the Veteran had difficulty lifting items. Regarding sensory disturbance, the December 2020 VA examination indicates that the Veteran had mild right upper extremity paresthesias and/or dysesthesias. The June 2018 VA cervical spine examination indicates moderate right upper extremity paresthesias and/or dysesthesias and numbness, as well as decreased sensation to light touch in the right shoulder, inner/outer forearm, and hand/fingers. Regarding loss of reflexes, the June 2018 VA cervical spine examination indicates hypoactive left bicep, triceps, and brachioradialis reflexes Regarding pain, the December 2020 VA examination indicates the Veteran had mild intermittent right upper extremity pain. The June 2018 VA cervical spine examination indicates moderate intermittent and constant right upper extremity pain Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board acknowledges the lay assertions of the severity of impairment of motor functions, sensory disturbance, loss of reflexes, and pain. However, the Board finds the medical of evidence of record to be more probative because it considers the Veteran’s lay descriptions and physical testing results. 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 service-connected 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. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.