Citation Nr: 21015358 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-17 803 DATE: March 17, 2021 ORDER Entitlement to an initial increased rating of 40 percent, but no higher, from December 9, 2007, for lumbar spondylosis with thoracolumbar strain is granted. Entitlement to an initial increased rating of 30 percent, but no higher, from December 9, 2007, for cervical spondylosis is granted. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran’s lumbar spine disability has manifested in pain and significant functional impairment resulting in flexion limited to 25 degrees; however, it has not manifested in bowel or bladder impairment or ankylosis. 2. Since the effective date of service connection, the Veteran’s cervical spine disability has manifested in flexion limited, at most, to 10 degrees; however, it has not manifested in bowel or bladder impairment or ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased rating of 40 percent, but no higher, from December 9, 2007, for lumbar spondylosis with thoracolumbar strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code (DC) 5239, General Rating Formula for Diseases and Injuries of the Spine (2018). 2. The criteria for entitlement to an initial increased rating of 30 percent, but no higher, from December 9, 2007, for cervical spondylosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, DC 5010-5239, General Rating Formula for Diseases and Injuries of the Spine (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from May 2004 to December 2007. In a July 2012 Decision, the Board remanded: (a) entitlement to an initial increased rating above 10 percent for the lumbar spine disability; and (b) entitlement to an initial compensable rating for the cervical spine disability. In a March 2013 Rating Decision, the agency of original jurisdiction (AOJ) granted an increased rating of 10 percent, effective December 9, 2007, for the cervical spine disability. However, because higher ratings were still available, the appeal remained properly before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2015 Decision, the Board, in pertinent part, denied: (a) entitlement to an initial increased rating above 10 percent for the lumbar spine disability; and (b) entitlement to an initial increased rating above 10 percent for the cervical spine disability. In a February 2016 Decision, the Board denied a Motion for Reconsideration of the October 2015 Board Decision. In a November 2016 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) partially vacated the October 2015 Board Decision and remanded: (a) entitlement to an initial increased rating above 10 percent for the lumbar spine disability; and (b) entitlement to an initial increased rating above 10 percent for the cervical spine disability. In a May 2017 Decision, the Board remanded: (a) entitlement to an initial increased rating above 10 percent for the lumbar spine disability; and (b) entitlement to an initial increased rating above 10 percent for the cervical spine disability. In a September 2017 Rating Decision, the AOJ, in pertinent part: (a) granted an increased rating of 40 percent, effective May 12, 2017, for the lumbar spine disability; (b) granted an increased rating of 30 percent, effective May 12, 2017, for the cervical spine disability; (c) granted separate service connection for neurological abnormalities associated with the lumbar spine disability (peripheral neuropathy of the left lower extremity); and (d) granted separate service connection for neurological abnormalities associated with the cervical spine disability (peripheral neuropathy of the bilateral upper extremities). However, because higher ratings were still available, the appeal remained properly before the Board. AB, supra. In an August 2019 Decision, the Board: (a) granted an increased rating of 20 percent prior to May 12, 2017, for the cervical spine disability; (b) denied an increased rating above 30 percent since May 12, 2017, for the cervical spine disability; (c) denied an increased rating above 10 percent prior to April 24, 2013, for the lumbar spine disability; and (d) granted an increased rating of 40 percent, effective April 24, 2013, for the lumbar spine disability. In an August 2019 Rating Decision, the AOJ implemented the August 2019 Board Decision. In an August 2020 JMPR, the Court partially vacated the August 2019 Board Decision and remanded: (a) entitlement to an increased rating above 10 percent prior to April 24, 2013, for the lumbar spine disability; and (b) entitlement to an increased rating above 20 percent prior to May 12, 2017, for the cervical spine disability. Increased Rating In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. When a disability of the joints is evaluated based on limitation of motion, examination findings must be consistent with the holdings in DeLuca, Mitchell, Correia, and Sharp. DeLuca v. Brown, 8 Vet. App. 202 (1995) (examiners must contemplate additional functional loss due to weakness, fatigability, incoordination, or painful motion); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (pain may result in functional loss if it limits the ability to perform normal working movements, even if present only on repetitive motion or during a flare-up); Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Notably, in the August 2020 JMPR, the Court found that the February 2008 and March 2013 VA examinations were inadequate because the examiner failed to: (a) estimate any additional functional loss during flare-ups; (b) conduct the required range of motion testing; and (c) contain sufficient explanations for the inability to estimate any additional function loss. The JMPR directed the Board to provide the Veteran with retrospective medical opinions that address the severity of the lumbar spine and cervical spine disabilities in a manner that is compliant with the holdings in DeLuca, Mitchell, Correia, and Sharp, to include, if appropriate, an adequate explanation as to why any requested testing is impracticable. Although the Board acknowledges the JMPR’s directives, it respectfully, and in the best interest of the Veteran, has chosen to decide the case with the evidence of record (excluding the February 2008 and March 2013 VA examination findings that the Court found inadequate), as discussed below. Crucially, the Board highlights that, in the August 2020 JMPR, the Veteran contended that he was satisfied with the Board’s August 2019 assigment of the higher ratings for the later time periods that are no longer on appeal (a 30 percent rating since May 12, 2017, for the cervical spine disability and a 40 percent rating since April 24, 2013, for the lumbar spine disability); therefore, because the decision herein assigns those higher ratings to the entire appeal period since the effective date of service connection for both disabilities, this constitutes a full grant of the benefit sought on appeal, and, thus, the Board not remanding for the retrospective opinions is harmless error. 1. Entitlement to an initial increased rating above 10 percent prior to April 24, 2013, for lumbar spondylosis with thoracolumbar strain The Veteran generally contends that his lumbar spine disability is more severe than contemplated by the current rating of 10 percent prior to April 24, 2013. The Veteran’s lumbar spine disability has been rated under DC 5239 at: (a) 10 percent from December 9, 2007, through April 23, 2013; and (b) 40 percent since April 24, 2013. See August 2019 Codesheet; 38 C.F.R. § 4.71a, DC 5239. All spine disabilities covered by DC’s 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. A 10 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for: forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent (maximum schedular) rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Formula, Note (1). In this case, the Veteran is already separately service connected for peripheral neuropathy of the left lower extremity associated with the lumbar spine disability. See August 2019 Codesheet. Notably, the Veteran has not contended, and the evidence does not otherwise indicate, any further neurological abnormalities, such as bowel or bladder impairment. See April 2013 letter by private provider Dr. PJY; November 2015 letter by private provider Dr. PJY; May 2017 VA examination. Intervertebral disc syndrome (IVDS) is evaluated either under the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Formula, Note (6). In this case, however, the evidence does not indicate that the Veteran was diagnosed with IVDS prior to April 24, 2013. See April 2013 letter by private provider Dr. PJY; November 2015 letter by private provider Dr. PJY; May 2017 VA examination. As such, the Board’s analysis focuses on whether an increased rating is warranted under the General Formula. A September 2005 treatment record reflects the Veteran reported low back pain since being kicked during physical training that morning. Physical examination revealed the Veteran looked “uncomfortable,” tenderness in the lower back, back pain when raising the left lower extremity, intact distal sensation, and an inability to bear weight. The assessment was left lumbar contusion and sprain. Subsequently in September 2005, the Veteran reported low back pain for five days. He reported that it was hard to walk, turn, sit down, bend over, or do anything physical. He described his low back pain as a sharp, shooting pain from the lumbar region to the glutes. Objective examination showed he was in obvious discomfort, was unable to sit straight, was walking with discomfort, had difficulty lying down, and had lumbar spasms in the left paralumbar region; x-rays were normal. The assessment was lumbar contusion. In February 2007 and June 2007 post-deployment health assessments, the Veteran reported experiencing back pain during a deployment to Afghanistan. A July 2007 private MRI of the lumbar spine showed minimal disc bulge at L4-L5 and early facet arthropathy at L4-L5 causing no spinal canal narrowing and no significant foraminal narrowing. In August 2007, the Veteran was placed on a permanent physical profile for lumbar spine disease. During outpatient treatment later in August 2007, range of motion testing of the thoracolumbar spine showed forward flexion to 60 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, left lateral rotation to 40 degrees, and right lateral rotation to 42 degrees. There was no additional limitation of motion on repetitive testing. All ranges of motion were limited by pain. Physical examination showed localized tenderness in the T12-L1 paraspinals and spinous processes as well as mild lumbar paraspinal spasms on the left, but no guarding, abnormal gait, or abnormal spinal contour. At his August 2007 separation examination, the Veteran reported a history of back pain; clinical evaluation was normal except for his spine. An October 2007 Medical Evaluation Board (MEB) diagnosed lumbar spondylosis and lumbar disc degeneration. He did not meet the retention requirements due to his lumbar spondylosis and lumbar disc degeneration. The MEB noted that the Veteran had injured his lumbar spine in December 2006 while deployed to Afghanistan. The MEB concluded that the Veteran could not perform his duties. In February 2008, the Veteran was afforded a VA examination. As discussed above, in the August 2020 JMPR, the Court found that the February 2008 examination was inadequate; as such, instead of discussing the inadequate measurements regarding functional loss, the Board will only discuss the Veteran’s contentions. The Veteran reported constant low back pain rated as five to six out of ten on a pain scale with radiation into the left shoulder blade at a pain level of six out of ten. The Veteran denied any bowel or bladder dysfunction or motor or sensory deficits. The Veteran denied having problems with his activities of daily living due to his low back pain but noted that it was difficult for him to stand for long periods of time. The Veteran did not use assistive devices and did not report other flare-ups, exacerbations, or bed rest in the previous 12 months. A June 2008 VA outpatient treatment record showed the Veteran reported low back pain since “he was doing some lifting,” left knee pain “with any movement,” and “some pain down the [left] leg to the knee.” The provider noted a longstanding history of back problems. The Veteran denied any loss of bowel or bladder control. Objective examination showed no back spasms palpated, back pain elicited “in all directions” of range of motion testing, no radiating pain, and negative straight leg raising. The assessment was low back pain and muscle spasms by history. In August 2008, the Veteran reported constant tightness and aching pain at seven out of ten on a pain scale, burning and sharp pain radiating down the posterior leg to just about the knee, and muscle spasms in the lower back. Physical examination showed four out of five muscle strength in all extremities, decreased muscle strength due to back pain, a full range of motion in the joints, muscle spasms on the left paraspinous muscle, tenderness to palpation in the lumbar spine, and positive straight leg raising with radiation down the left leg. In September 2008, the Veteran reported left low back pain. A CT scan of the lumbar spine was reviewed and showed slight narrowing of the L3/4 disc space. Physical examination showed mild left paraspinal pain, negative straight leg raising, and equal deep tendon reflexes. The assessment was chronic low back pain secondary to lumbar degenerative disc disease. In October 2008, the Veteran reported worsening back pain with pain radiating down the right buttocks. He rated his low back pain as six to seven out of ten on a pain scale worsening to nine out of ten on a pain scale. Physical examination showed tenderness to palpation of the left lower lumbosacral area. In August 2009, the Veteran’s reports included constant tightness, aching pain, and muscle spasms in the left lower lumbar spine which he rated as seven out of ten on a pain scale with burning and sharp pain radiating down the posterior leg to just above the knee. Physical examination of the back showed no tenderness to palpation and a full range of motion. In September 2009, the Veteran’s reports included persistent low back pain localized to the left side radiating to the left lower extremity to the knee. He rated his pain as six to seven out of ten on a pain scale. Physical examination showed lumbar paraspinal tenderness with limited range of motion in the lumbar spine, active range of motion within normal limits, negative straight leg raising, a normal gait, and intact sensation. The assessment was chronic low back pain with left lower extremity radicular pain and lumbar disc protrusions/bulges. In March 2013, the Veteran was afforded a VA examination. As discussed above, in the August 2020 JMPR, the Court found that the March 2013 examination was inadequate; as such, instead of discussing the inadequate measurements regarding functional loss, the Board will only discuss the Veteran’s contentions. The Veteran reported constant back pain which he described as a dull aching type of pain and rated as five out of ten on a pain scale. The Veteran also reported that he has periods where the pain will increase to a sharp pain at a level of nine out of ten with certain movements. He reported that his back will get stuck. The Veteran reported that his low back pain “may shoot down the left” leg to the left knee, occurred several times a week, and lasted for half a day at a time. He denied any bowel or bladder changes. The examiner noted mild intermittent pain of the left lower extremity involving the L4/L5 nerve roots but no other signs or symptoms or radiculopathy, no neurologic abnormalities, and no intervertebral disc syndrome. The Veteran reported regularly using a back brace. In an April 2013 letter, private provider Dr. PJY stated that the Veteran has developed increased low back pain and further dysfunction of his lumbar spine which is now constant in varying degrees. His pain concentrates in the lumbosacral region and migrates into the left lower buttock and left posterior thigh. Physical examination showed true flexion (hips immobile) to 25 degrees active and less than 30 degrees passive; true extension was to 5 degrees active and less than 10 degrees passive. Dr. PJY noted significant loss (50 percent or more) of the normal mobility of the L5 segment which is concomitant with markedly hypertonic deep and intermediate musculature at that level. In a November 2015 letter, private provider Dr. PJY stated that there is some indication the range of motion testing conducted during the March 2013 VA examination was incorrect as the VA examiner pushed the Veteran forward so as to increase motion. Dr. PJY stated that range of motion testing was again conducted and yielded results of flexion to 20 degrees, extension to 5 degrees, right rotation to 15 degrees, left rotation to 15 degrees, right lateral flexion to 15 degrees, and left lateral flexion to 15degrees. Dr. PJY stated that to achieve the range of motion measurements in the March 2013 VA examination, the Veteran would have to have been in the crouched position with a push from the VA examiner; otherwise, it would have been absolutely physically impossible. Dr. PJY also stated that the Veteran suffers from right sciatic pain and that he found it suspicious the VA examiner ignored that finding entirely. In May 2017, the Veteran was afforded a VA examination (the most recent to date). The Veteran reported constant pain localized to the mid-lumbar region with associated intermittent radiation and tingling into the buttocks and leg down to the level of the knee. The Veteran reported that his back pain was flared to a seven to eight out of 10 on a pain scale on the day of examination, that flare-ups occurred three to four times a week, that flare-ups lasted for several hours, and that flare-ups limited most physical activities. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. There was evidence of painful motion, but it did not result in functional loss. Additionally, there was no evidence of pain on weightbearing. The Veteran was able to perform repetitive use testing without any additional functional limitations or decrease in ranges of motion. The examiner noted that the examination was conducted during a flare-up, which did not result in additional loss in range of motion findings. There was evidence of localized tenderness or pain on palpation over the bilateral paraspinous muscles, with the left greater than the right. There was also evidence of muscle spasms, but they did not result in abnormal gait or spinal curvature. There was no evidence of muscle atrophy. Further, muscle strength testing, deep tendon reflexes, and sensory testing were normal. Straight leg raising was negative in the right lower extremity and positive in the left lower extremity. The examiner determined that the Veteran suffers from mild radiculopathy of the sciatic nerve in the left lower extremity only. There was no evidence of other neurological abnormalities. The examiner found evidence of IVDS, but there was no indication that the Veteran suffered from any incapacitating episodes in the last 12 months. X-ray findings failed to note the presence of arthritis in the lumbar spine. An October 2017 private MRI provided a diagnosis of radiculopathy of the left lower extremity. Further, the claims file contains additional post-service treatment records documenting the Veteran’s reports of and treatment for his lumbar spine disability throughout the course of this appeal; however, these records do not contain any additional range of motion findings or other objective evidence more severe than what has been discussed above. Based on the evidence above, the Board finds that entitlement to an initial increased rating of 40 percent, but no higher, prior to April 24, 2013, for lumbar spondylosis with thoracolumbar strain is warranted; with the grant herein, the Veteran’s lumbar spine disability will be rated at 40 percent since December 9, 2007. Specifically, the Board highlights that throughout the appeal period, the lumbar spine disability has been manifested by flare-ups; however, because the February 2008 and March 2013 VA examinations are inconsistent with the DeLuca, Mitchell, Correia, and Sharp holdings, the Board will consider the Veteran’s contentions from all examinations, but will focus its attention on (and apply retroactively to the entire appeal period) the medical findings from Dr. PJY and the May 2017 VA examination. Notably, Dr. PJY’s April 2013 letter, Dr. PJY’s November 2015 letter, and the May 2017 VA examination support the finding of flexion limited to 25 degrees on active motion and 30 degrees on passive motion, with limitations on sitting, standing, and laying down; these findings warrant a 40 percent rating (as delineated above, a 40 percent rating, in pertinent part, requires forward flexion of the thoracolumbar spine at 30 degrees or less). 38 C.F.R. § 4.71a, DC 5239, General Formula. However, higher ratings are not available because the evidence demonstrated that the Veteran retained motion in his lumbar spine, albeit limited during flare-ups, which precludes a finding of ankylosis (as delineated above, a 50 percent rating, in pertinent part, requires unfavorable ankylosis of the entire thoracolumbar spine; as delineated above, a 100 percent rating requires unfavorable ankylosis of the entire spine). Id. In conclusion, the Board grants an initial increased rating of 40 percent, but no higher. If the Veteran’s lumbar spine disability eventually deteriorates to the point of ankylosis, then the Board invites the Veteran to file another claim for an increased rating. 2. Entitlement to an initial increased rating above 20 percent prior to May 12, 2017, for cervical spondylosis The Veteran generally contends that his cervical spine disability is more severe than contemplated by the current rating of 20 percent prior to May 12, 2017. The Veteran’s cervical spine disability has been rated under DC 5010-5239 at: (a) 20 percent from December 9, 2007, through May 11, 2017; and (b) 30 percent since May 12, 2017. See August 2019 Codesheet; 38 C.F.R. § 4.71a, DC 5010-5239. All spine disabilities covered by DC’s 5235 to 5243 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. 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 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 (maximum schedular) rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Formula, Note (1). In this case, the Veteran is already separately service connected for peripheral neuropathy of the bilateral upper extremities associated with the lumbar spine disability. See August 2019 Codesheet. Notably, the Veteran has not contended, and the evidence does not otherwise indicate, any further neurological abnormalities, such as bowel or bladder impairment. See April 2013 letter by private provider Dr. PJY; November 2015 letter by private provider Dr. PJY; May 2017 VA examination. Intervertebral disc syndrome (IVDS) is evaluated either under the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, General Formula, Note (6). In this case, however, the evidence does not indicate that the Veteran was diagnosed with IVDS prior to May 12, 2017. See April 2013 letter by private provider Dr. PJY; November 2015 letter by private provider Dr. PJY; May 2017 VA examination. As such, the Board’s analysis focuses on whether an increased rating is warranted under the General Formula. In March 2007, the Veteran reported back pain causing numbness in his hands and fingers for the previous two to three months, including while he was deployed. He stated that his back pain radiated into his shoulder blades. Objective examination showed a normal gait, an abnormal spinal alignment, and a right scapula less elevated than left scapula. X-rays of the cervical spine were normal. The assessment included cervicalgia with subjective neurological findings. In April 2007, the Veteran was diagnosed as having cervical pain consistent with bilateral upper extremity weakness. Subsequently in April 2007, private outpatient treatment records with Dr. MC documented the Veteran’s report that he had been having neck pain, described as more in the left side than right side, with some numbness of the hands, more so on the left than right. The Veteran rated his pain as three to four out of ten on a pain scale and denied any weakness or bowel or bladder incontinence. He also reported some pain in his forearms, more so on the left side. A MRI scan was reviewed and showed a disk bulge and facet arthropathy at the C5-C6 level; an EMG of the upper extremities was normal. There was no evidence of cervical radiculopathy. In March 2013, the Veteran was afforded a VA examination. As discussed above, in the August 2020 JMPR, the Court found that the March 2013 examination was inadequate; as such, instead of discussing the inadequate measurements regarding functional loss, the Board will only discuss the Veteran’s contentions. The Veteran reported constant neck pain, described as a sharp, pinching type of pain and rated as six to seven out of ten on a pain scale. The pain was at the base of the neck and into the shoulder blades but did not radiate down his arms. The Veteran reported experiencing flare-ups of neck pain a few times a week that lasted for a few hours. There was normal sensation, no radicular pain or any other signs or symptoms due to radiculopathy, no neurologic abnormalities, and no intervertebral disc syndrome. The Veteran denied using any assistive devices for ambulation. In an April 2013 letter, private provider Dr. PJY stated that the Veteran had also developed radicular pain into the left upper extremity ulnar distribution. On examination, cervical spine ranges of motion (which were properly tested absent motion of the shoulders or thoracic spine) measured flexion to 30 degrees, extension 35 degrees, right rotation 40 degrees, left rotation 45 degrees, right lateral flexion 15 degrees, and left lateral flexion 20 degrees. Dr. PJY noted significant loss (50 percent or more) of the normal vertebral mobility at C2, C3, C4, and the cervicothoracic region generally. The diagnosis provided was cervicothoracic pain with the clinical addition of chronic discopathy manifesting in radicular pain. In a November 2015 letter, private provider Dr. PJY noted range of motion testing showing flexion to 20 degrees, extension to 30 degrees, right and left lateral rotation to 45 degrees, and right and left lateral flexion to 20 degrees. Dr. PJY also noted radiculopathy of the left upper extremity. In May 2017, the Veteran was afforded a VA examination (the most recent to date). The Veteran reported constant pain localized in the cervical region, radiating between shoulder blades. The Veteran stated that his head feels heavy on his neck. He also reported tingling in both arms radiating into the back of the arms and fingers bilaterally. The Veteran reported that he has difficulty with activities involving rapid head movements, activities involving looking up, and difficulty with picking up children. The Veteran reported that, during flare-ups, pain is a six or seven out of ten on a pain scale, occurring daily, and lasting intermittently momentarily. The impact was the same as described with his baseline pain above. Range of motion testing revealed flexion to 10 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 20 degrees. There was evidence of painful motion, but it did not result in functional loss. Additionally, there was no evidence of pain on weightbearing. The Veteran was able to perform repetitive use testing without any additional functional limitations or decrease in ranges of motion. The examiner noted that the examination was not conducted during a flare-up, and the examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limit functional ability without resorting to speculation. There was evidence of localized tenderness or pain on palpation over the bilateral paraspinous muscles of the cervical region. There was also evidence of muscle spasms, but they did not result in abnormal gait or spinal curvature. There was no evidence of muscle atrophy. Further, muscle strength testing and deep tendon reflexes were normal. There was evidence of decreased sensation in the bilateral hands. The examiner determined there was evidence of mild paresthesias/dysesthesias in the upper extremities bilaterally. As such, the examiner concluded that the Veteran suffers from mild radiculopathy of the bilateral upper extremities. There was no evidence of other neurological abnormalities. The examiner found no evidence of IVDS. An October 2017 private MRI provided a diagnosis of radiculopathy of the left upper extremity only. Further, the claims file contains additional post-service treatment records documenting the Veteran’s reports of and treatment for his cervical spine disability throughout the course of this appeal; however, these records do not contain any additional range of motion findings or other objective evidence more severe than what has been discussed above. (Continued on the next page)   Based on the evidence above, the Board finds that entitlement to an initial increased rating of 30 percent, but no higher, prior to May 12, 2017, for cervical spondylosis is warranted; with the grant herein, the Veteran’s cervical spine disability will be rated at 30 percent since December 9, 2007. Specifically, the Board highlights that throughout the appeal period, the cervical spine disability has been manifested by flare-ups; however, because March 2013 VA examination is inconsistent with the DeLuca, Mitchell, Correia, and Sharp holdings, the Board will consider the Veteran’s contentions from all examinations, but will focus its attention on (and apply retroactively to the entire appeal period) the medical findings from Dr. PJY and the May 2017 VA examination. In April 2013, Dr. PJY found forward flexion to 30 degrees, in November 2015, Dr. PJY found forward flexion to 20 degrees with pain, and, in May 2017, the VA examiner found forward flexion to 10 degrees with pain; applying the most severe measurement, to the Veteran’s advantage, the Board finds that the limitation of flexion to 10 degrees warrants a 30 percent rating (as delineated above, a 30 percent rating, in pertinent part, requires forward flexion of the cervical spine 15 degrees or less). 38 C.F.R. § 4.71a, DC 5010-5239, General Formula. However, higher ratings are not available because the evidence demonstrated that the Veteran retained motion in his cervical spine, albeit limited during flare-ups, which precludes a finding of ankylosis (as delineated above, a 40 percent rating, in pertinent part, requires unfavorable ankylosis of the entire cervical spine; as delineated above, a 100 percent rating requires unfavorable ankylosis of the entire spine). Id. In conclusion, the Board grants an initial increased rating of 30 percent, but no higher. If the Veteran’s cervical spine disability eventually deteriorates to the point of ankylosis, then the Board invites the Veteran to file another claim for an increased rating. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.