Citation Nr: 21015293 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-19 393 DATE: March 17, 2021 ORDER Service connection for a sleep disorder is denied. An initial disability rating greater than 20 percent for degenerative joint and disc disease of the cervical spine (cervical spine disability) is denied. An initial disability rating greater than 40 percent for right upper extremity radiculopathy is denied. Entitlement to a separate compensable rating for a neurological abnormality of the left upper extremity associated with the service-connected cervical spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Although medical providers during the claim period have remarked that the Veteran has insomnia, the evidence of record indicates that the Veteran’s insomnia is a symptom associated with his already service-connected depressive disorder. A preponderance of the evidence demonstrates that the Veteran has not been diagnosed with a current sleep disorder distinct from symptoms associated with his depressive disorder during the claim period. 2. The evidence of record demonstrates that the Veteran’s cervical spine disability did not limit forward flexion of the cervical spine to 15 degrees or less during the claim period. Additionally, the Veteran’s cervical spine disability did not cause ankylosis of the entire cervical spine during the claim period. 3. The evidence of record indicates that the Veteran’s right upper extremity radiculopathy is best characterized as moderate incomplete paralysis of all radicular groups during the claim period. 4. The evidence of record indicates that the Veteran does not currently experience an abnormality of the left upper extremity associated with his cervical spine disability. 5. In January 2018, a Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision which implemented, among other issues, a grant of service connection for depressive disorder awarded by the Board of Veterans’ Appeals (Board) in December 2017. In the January 2018 rating decision, the RO assigned an initial 100 percent rating for depressive disorder, effective September 1, 2010—the date of receipt of claim. The assignment of a 100 percent initial rating for depressive disorder for the entire claim period has rendered the issue of entitlement to a TDIU moot. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial disability rating greater than 20 percent for a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5242. 3. The criteria for an initial disability rating greater than 40 percent for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8513. 4. The criteria for a separate compensable disability rating for a neurological abnormality of the left upper extremity associated with a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.2, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8513. 5. The assignment of a 100 percent rating for depressive disorder for the entire claim period renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1975 to September 1979 and from May 1980 to August 1987. In an October 2006 administrative decision, VA determined that the Veteran was barred from benefits related to the second period of service due to the character of his discharge. These matters come before the Board on appeal from July 2012 and February 2014 rating decisions of VA ROs. Jurisdiction of the Veteran’s claims file currently resides with the Philadelphia, Pennsylvania RO. In August 2013, the Veteran testified at a hearing at the RO before a Decision Review Officer. Then, in August 2016, the Veteran testified at a Board videoconference hearing before the undersigned. Transcripts of both hearings are associated with the claims file. In December 2017, the Board first found that new and material evidence had been received to reopen the previously denied claim of service connection for bilateral hearing loss. The Board then denied service connection for that issue on its merits. Additionally, the Board granted service connection depressive disorder and migraine headaches while granting in part increased initial disability ratings for a cervical spine disability and right upper extremity radiculopathy. Lastly, the Board remanded the issues of: (1) entitlement to an initial disability rating greater than 20 percent for a cervical spine disability; (2) entitlement to an initial disability rating greater than 40 percent for right upper extremity radiculopathy; (3) entitlement to a separate compensable rating for left upper extremity radiculopathy associated with the cervical spine disability; (4) entitlement to service connection for a sleep disorder; and (5) entitlement to a TDIU. The case has returned to the Board for appellate review. Service Connection for a Sleep Disorder Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). In the instant case, the Board finds that entitlement to service connection for a sleep disorder is not warranted. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board notes that evidence of a present disability is necessary before service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.”). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Here, the Board acknowledges that VA medical professionals indicated during the claim period that the Veteran experienced insomnia. See, e.g., April 2010 VA Ambulatory Assessment. However, the Veteran’s insomnia was identified as a symptom of his depressive disorder. See July 2017 VA Psychiatry Note (diagnosing the Veteran with depressive disorder unspecified and posttraumatic stress disorder and reducing his dosage of mirtazapine for insomnia symptoms); October 2016 VA Mental Health Note (documenting that the Veteran reported getting 5 hours of sleep per night with medication); August 2016 Board Hearing Tr. at 9 (recording the Veteran’s testimony that his sleeping issues are related to medications he takes for depression); December 2010 VA Mental Disorders Examination Report (associating the symptoms of insomnia and hypersomnia with the Veteran’s depressive disorder). Currently, the Veteran is service-connected for depressive disorder, rated as 100 percent disabling, and, thusly, is already compensated for his insomnia symptoms. Separate from insomnia, the Veteran has not been diagnosed with any other manifestations of a separately-diagnosable disability during the claim period. As there is no competent evidence of a separate disability, the Board must deny the Veteran’s claim. See Brammer, 3 Vet. App. at 225. Increased Ratings 1. Cervical Spine Disability As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to an initial rating greater than 20 percent for his cervical spine disability. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board first notes that the Veteran’s cervical spine disability is currently rated at 20 percent pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5242. During the pendency of the Veteran’s claim, 38 C.F.R. § 4.71a was amended. See Prior to February 7, 2021, Diagnostic Code 5003 was associated with degenerative arthritis. Under this version of the rating schedule, disabilities assigned Diagnostic Code 5003 were to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Additionally, under the prior version, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine and evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The Board finds the pre-amendment version of the rating schedule to be more beneficial to the Veteran. Accordingly, the Board will evaluate the Veteran’s disability according to the pre-amendment version of Diagnostic Code 5003-5242. Under the General Rating Formula, a 30 percent rating is warranted when there is favorable ankylosis of the entire cervical spine or forward flexion of the cervical spine is limited to 15 degrees or less. A 40 percent rating is warranted when there is evidence of unfavorable ankylosis of the entire cervical spine. Lastly, a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Note (5) to the general rating formula defines unfavorable ankylosis 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. 38 C.F.R. § 4.71a. Turning to the evidence of record, the Board notes that the Veteran was provided 3 VA examinations during the claim period. During a VA spine examination in November 2010, the Veteran underwent range of motion testing of the cervical testing. During this testing, forward flexion of the cervical spine was limited to 45 degrees. The Veteran reported experiencing flare-ups every 1-2 months, described as episodes of severe neck pain lasting 20 minutes. The examiner stated that, during a flare-up, range of motion of the cervical spine would be limited an additional 50 percent. Thusly, during a flare-up, forward flexion of the cervical spine would be limited to 22.5 degrees. Lastly, the examiner remarked that the Veteran did not display ankylosis. Next, during a May 2015 VA neck conditions examination, the Veteran again underwent range of motion testing for the cervical spine. On this occasion, forward flexion of the cervical spine was again limited to 45 degrees. The Veteran again reported experiencing flare-ups, which he described as increased pain about once a week. The examiner acknowledged the Veteran’s reports of flare-ups, but remarked that he was not able to provide an estimate of additional loss of range of motion during flare-ups as he did not directly observe the Veteran during a flare. Lastly, the examiner remarked that ankylosis was not present. The Board finds the May 2015 VA examiner’s rationale regarding a flare-up opinion to be contrary to the Court of Appeals for Veterans Claims’ (Court) holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds the May 2015 VA examination report regarding limitation of motion of the cervical spine to be of limited probative value. Lastly, the Veteran was provided another VA neck conditions examination in June 2016. On this occasion, the examiner remarked that ankylosis of the cervical spine was not present. Range of motion testing was again conducted; however, the Veteran reported experiencing flare-ups of the cervical spine and the examiner did not provide estimations regarding additional loss of motion during a flare. Similar to the May 2015 examination, the Board finds the June 2016 VA examination report regarding limitation of motion of the cervical spine to be in conflict with Sharp. Thus, the Board finds its discussion of the Veteran’s limitation of motion to be of limited probative value. The Board notes that, in December 2017, the Board remanded the issue of entitlement to an increased disability rating for the cervical spine for the provision of a new VA examination. The requested examination was scheduled for May 2018, but the Veteran did not appear. Generally, when a claimant, without good cause, does not appear for a VA examination scheduled in connection with a claim for increase, the claim is to be rated based on the evidence of record. 38 C.F.R. § 3.655(b). As neither the Veteran nor his representative has provided good cause for his non-attendance at his scheduled post-remand VA examination, the Board must adjudicate his case using only the evidence of record, despite any inadequacies in the May 2015 and June 2016 VA examinations. See id. Moving beyond the above-described VA examination reports, the Board notes that the Veteran did receive treatment for his cervical spine during the pendency of his claim. Specifically, in January 2011, the Veteran’s neck was evaluated by a VA provider. The provider commented that the Veteran’s range of motion was only limited at the “end range” of testing. However, the January 2011 VA treatment record did not notate the specific point, in terms of degrees, where forward flexion of the cervical spine terminated. A July 2016 VA treatment record contained similar findings. Similar to these VA treatment records, an August 2011 VA physical medicine rehabilitation note indicated that range of motion of the cervical spine was only limited “in the extreme range.” As normal forward flexion of the cervical spine is to 45 degrees, the Board concludes that limitation at the “extreme range” is not consistent with finding that flexion was limited to at least 15 degrees. See 38C.F.R. § 4.71a, Plate V. Consistent with this conclusion, the Board notes that a VA treatment record from February 2014 noted that the Veteran’s cervical range of motion was full. Separate from notations of range of motion testing recorded in VA treatment records associated with the Veteran’s claims file, a medical provider did not indicate that the Veteran experienced ankylosis during any portion of the claim period. From this evidence of record, the Board finds that, at most, forward flexion of the cervical spine was limited to 22.5 degrees during the claim period when accounting for flare-ups. Additionally, the Board also finds that the Veteran did not experience ankylosis—either favorable or unfavorable—during any portion of the claim period. As favorable ankylosis of the entire cervical spine or limitation of forward flexion of the cervical spine to 15 degrees or fewer is necessary for the Board to assign the next higher rating of 30 percent under the General Rating Formula, the Board concludes that an initial rating greater than 20 percent is not warranted in the instant case. See 38 C.F.R. § 4.71a. Thus, the Board denies the Veteran’s claim. 2. Increased Rating for Right Upper Extremity Radiculopathy; Separate Compensable Rating for a Neurological Abnormality of the Left Upper Extremity As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to an initial disability rating greater than 40 percent for right upper extremity radiculopathy. Additionally, the Board concludes that the Veteran is not entitled to a separate compensable rating for a neurological abnormality of the left upper extremity associated with his cervical spine disability. As such, the Veteran’s claims are denied. In support of these determinations, the Board first notes that the Veteran’s current 40 percent rating for his right upper extremity was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8513, for paralysis of all radicular groups. The evidence of record indicates that the Veteran is right arm dominant. See August 2016 VA Occupational Therapy Assessment. Under Diagnostic Code 8513, a 40 percent rating is assigned for moderate incomplete paralysis of all radicular groups on the dominant side. Comparatively, a 70 percent rating is assigned for severe incomplete paralysis of all radicular groups on the dominant side. Lastly, a 90 percent rating is assigned for complete paralysis of all radicular groups on the dominant side. Turning to the evidence of record, the Board first notes that, during a November 2010 VA spine examination, the examiner recorded that the Veteran had a history of pain, numbness, and paresthesias affecting the right upper extremity. However, the examiner remarked that the Veteran’s symptoms were unrelated to his cervical spine disability. The Veteran did not report—and the examiner did not observe—any symptoms associated with the left upper extremity. Comparatively, in February 2011, the Veteran was provided a VA peripheral nerves examination. On this occasion, the Veteran reported symptoms of pain in the neck and the right upper extremity, weakness in the right hand, stiffness, and numbness in right hand fingertips. Reflex testing produced normal reflexes for the biceps of both sides, hypoactive reflexes for the triceps and brachioradialis bilaterally, and absent finger jerk reflexes. During sensory testing, the Veteran displayed normal sensation in the left upper extremity, but diffuse pinprick and light touch sensation in the right upper extremity. Finally, the examiner noted that a detailed motor examination produced normal results bilaterally. The examiner concluded by stating that the Veteran experienced chronic right upper extremity radiculopathy which decreased his manual dexterity. Separate from this February 2011 VA peripheral nerves examination, a May 2015 VA neck conditions examination also addressed radicular symptoms of the upper extremities affiliated with the Veteran’s service-connected cervical spine disability. Specifically, the Veteran reported experiencing a constant dull pain in the back of his neck, most pronounced on the right side, that radiated down his right arm into his right hand. The Veteran stated that he believed his right hand grip was weaker than his left hand and that he experienced intermittent numbness in the right arm as well. The examiner commented that the Veteran had radiculopathy in the right upper extremity only and conducted objective testing to determine the severity of the Veteran’s symptoms. While classifying the overall severity as mild, the examiner first noted that muscle strength and sensory testing was normal bilaterally. Comparatively, during reflex testing, the examiner remarked that the Veteran displayed hypoactive reflexes of the biceps, triceps, and brachioradialis. A little over one year later, the Veteran was provided another VA neck conditions examination in June 2016. On this occasion, the Veteran again discussed symptoms impacting his right upper extremity. Specifically, the Veteran reported pain beginning in his neck and radiating down his right arm. Additionally, the Veteran stated that he experienced numbness in the fingers of his right hand. The examiner noted that the Veteran displayed reduced muscle strength during testing of right-sided finger flexion and finger abduction, but did not exhibit muscle atrophy in either upper extremity. Additionally, the examiner remarked that sensory and reflex testing produced normal results bilaterally. Lastly, the examiner opined that the Veteran had radiculopathy of the right upper extremity only and classified the overall severity of the radiculopathy as moderate. In addition to the relevant VA examination reports of record, the Board notes that the Veteran received treatment for upper extremity radiculopathy from VA providers during the claim period. Specifically, in January 2011, the Veteran reported to a VA clinician that he experienced pain, tingling, numbness, stiffness, and weakness in the right upper extremity. The Veteran stated that the pain was sharp and intermittent. A physical examination of the right upper extremity demonstrated normal muscle strength, reflexes, and sensation. Similarly, as noted in August 2011 and October 2011 VA physical medicine rehabilitation notes, the Veteran displayed normal muscle strength and hand grip in the right upper extremity. The Veteran did not report any symptoms regarding his left upper extremity. In July 2016, the Veteran underwent an evaluation of his upper extremities by a VA provider. On this occasion, the Veteran displayed tenderness to palpation of the right wrist. The Veteran displayed normal grip strength, muscle tone, deep tendon reflexes, sensation, and coordination bilaterally. The clinician then diagnosed the Veteran with cervical radiculopathy rule-out right carpal tunnel syndrome. Lastly, in August 2016, the Veteran was seen by a VA occupational therapist. On this occasion, the provider noted that the Veteran experienced pain radiating from his neck down his right shoulder to the distal extremity, wrist, hand, and thumb. Additionally, the provider noted that the Veteran had numbness, tingling, itchiness, and decreased grip strength of the right hand only. Lastly, the provider issued the Veteran splints for use during the day and night. From this disability picture, the Board categorizes the Veteran’s right upper extremity radiculopathy as moderate incomplete paralysis of all radicular groups, warranting the assignment under Diagnostic Code 8513 of only a 40 percent initial disability rating for the dominant right side. See 38 C.F.R. § 4.124a. As this is the Veteran’s current disability rating for the right upper extremity, the Board denies the Veteran’s claim for an increased rating. In declining to assign the next higher rating of 70 percent under Diagnostic Code 8513, the Board notes that, at no time during the appeal period, did the Veteran display substantial deficits or abnormalities during objective neurological testing of the upper extremities. Specifically, while the Veteran did display absent reflexes during the February 2011 VA peripheral nerves examination, the absence of reflexes was only present during finger jerk testing. Additionally, this was an isolated occurrence documented only once in February 2011 and at no other time during the claim period. Additionally, the Veteran did not display significantly diminished muscle strength, sensation, or grip strength of the right upper extremity repeatedly throughout the claim period. As such evidence was not displayed during the claim period, the Board declines to assign a rating greater than 40 percent under Diagnostic Code 8513 for the right upper extremity. Comparatively, at no point during the claim period did a medical professional indicate that the Veteran experienced a neurological abnormality of the left upper extremity associated with his service-connected cervical spine disability. Indeed, the Veteran did not complain of symptoms affecting his left side when discussing pain and numbness radiating from his neck. Accordingly, the Board finds that entitlement to a separate compensable rating for an associated disability impacting the left upper extremity is not warranted in this case. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). TDIU A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is not seeking SMC at the housebound rate, and the record does not otherwise reasonably raise that matter. Further, as indicated in the Findings of Fact section, when the Agency of Original Jurisdiction (AOJ) issued a rating decision in January 2018 which implemented the issues adjudicated in the December 2017 Board decision, it assigned an initial 100 percent rating for depressive disorder, effective September 1, 2010—the date of receipt of claim. As this was the earliest effective date assignable not only for depressive disorder, but for the Veteran’s cervical spine disability and right upper extremity radiculopathy, the grant of the 100 percent rating rendered the Veteran’s appeal as to entitlement to a TDIU moot. See 38 C.F.R. § 3.400(b)(2); see also Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13 (Jan. 6, 2021). Accordingly, the appeal as to entitlement to a TDIU is dismissed. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.