Citation Nr: 21021603 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 09-47 506 DATE: April 13, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected status post left shoulder surgical repair with degenerative joint disease is denied. Entitlement to an initial rating in excess of 10 percent for service-connected status post cervical spine surgery with residuals, and in excess of 20 percent from September 8, 2020 forward is denied. Entitlement to a 20 percent rating, but not higher, for radiculopathy of the left upper extremity is granted, from April 1, 2008, forward. Entitlement to a 20 percent rating, but not higher, for radiculopathy of the right upper extremity is granted, from March 15, 2018, forward. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran’s left shoulder disability was manifested, at worst, by limitation of motion of the arm to 45 degrees, including with consideration of functional loss due to pain. 2. Prior to September 8, 2020, the Veteran’s cervical spine disability was manifested by painful motion. 3. From September 8, 2020 forward, the Veteran’s cervical spine disability was manifested by forward flexion limited to 25 degrees. 4. Since April 1, 2008, the Veteran has radiculopathy of the left upper extremity manifested by mild incomplete paralysis. 5. Since March 15, 2018, the Veteran has radiculopathy of the right upper extremity manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected status post left shoulder surgical repair with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201-5010. 2. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected status post cervical spine surgery with residuals, and in excess of 20 percent from September 8, 2020 forward have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5238, 5237. 3. The criteria for an initial rating of 20 percent, but not higher, for radiculopathy of the left upper extremity effective April 1, 2008 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8513. 4. The criteria for an initial rating of 20 percent, but not higher, for radiculopathy of the right upper extremity effective March 15, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to October 1989, and from March 1990 to March 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. This matter was remanded by the Board in June 2017 and January 2019 for further development. Increased Rating 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected status post left shoulder surgical repair with degenerative joint disease is denied. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is in receipt of an initial 20 percent disability rating for the service-connected status post left (non-dominant) shoulder surgical repair with degenerative joint disease (left shoulder disability) under Diagnostic Code 5201-5010. 38 C.F.R. § 4.71a. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 5010 pertains to arthritis, Diagnostic Code 5201 pertains to limitation of motion. VA’s schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The old version of DC 5010 provided that arthritis due to trauma was to be rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. The revised DC 5010 provides that post-traumatic arthritis is to be rated as “limitation of motion, dislocation, or other specified instability under the affected joint. Effectively, the 10 percent rating under DC 5003 for noncompensable limitation of motion has been removed for traumatic arthritis. Disorders of the shoulders are rated under DCs 5200 through DCs 5203 of 38 C.F.R. § 4.71a. The above-referenced DC provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. A September 2020 VA examination report reflects that the Veteran is right hand dominant, therefore his left shoulder disability is considered a minor joint. Diagnostic Code 5203 provides that impairment of the clavicle or scapula is to be rated as dislocation, nonunion, or malunion; or rate on impairment of function of the contiguous joint. DC 5203 does not provide for a rating in excess of the current 20 percent disability rating. Concerning impairment of function of the contiguous joint, under DC 5201 limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 20 percent rating is warranted for the minor extremity. When motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5202 provides for a 20 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; a 20 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes of guarding of all arm movements for the minor extremity; a 40 percent rating for fibrous union of the humerus for the minor extremity; a 50 percent rating for nonunion of the humerus for the minor extremity; and 70 percent rating for loss of head of the humerus of the minor arm. 38 C.F.R. § 4.71a. Under DC 5200, a 20 percent rating is warranted for favorable ankylosis with abduction to 60 degrees and ability to reach mouth to head for the minor extremity, 30 percent rating is warranted in instances of intermediate ankylosis between favorable and unfavorable. A 40 percent rating is warranted where there is unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5200. The revised schedule, in effect as of February 7, 2021, contemplating limitation of motion of the arm (minor extremity) under DC 5201, provides that a 20 percent rating is assigned for limitation of the arm at shoulder level (flexion and/or abduction limited to 90 degrees); a 20 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a 30 percent rating is assigned for flexion and/or abduction of the arm limited to 25 degrees from the side. Diagnostic Code 5202 was unchanged, save for clarifying that “shoulder level” means flexion and/or abduction limited to 90 degrees (recurrent dislocation at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level), required for the assignment of a 20 percent rating. No revisions were made DCs 5200 and 5203. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran’s service-connected right shoulder disability. Instead, the revisions clarify that “shoulder level” means 90 degrees and “midway between the side and shoulder level” means 45 degrees, information which was previously available and garnered from 38 C.F.R. § 4.71a, Plate I. As such, the Board finds there is no prejudice to the Veteran in the Board’s consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexion - the two planes of movement involving lifting the arm from the side, whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that "the plain language of [DC] 5201... allows only a single rating for 'limitation of motion of' an arm"); cf. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a single diagnostic code, a claimant is not entitled to more than one rating for a given disability unless the diagnostic code expressly provides otherwise). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal from April 1, 2008, the criteria for an initial rating in excess of 20 percent for the left shoulder disability have not been met or more nearly approximated. Throughout the initial rating period on appeal, the left shoulder disability has been manifested, at worst, by limitation of motion of the arm to 65 degrees, with consideration of functional loss on repeated use including during flare-ups, as explained below. The Veteran stated that he has pain in his left shoulder. See February 2009 Notice of Disagreement (NOD). He stated that he used to be an avoid soccer player, referee, water skier, and wakeboarder, and that due to pain in his shoulder, he can no longer enjoy these activities. See id. He explained that he is still able to coach soccer, but he has lost the ability to participate in other activities, and this has changed his life. He has had 3 surgeries on his shoulder and believes he has limited range of motion due to this. He testified that he was told by his surgeon that there is a “foreign body” in his shoulder, likely one of the screws from a previous surgery, and that this probably causes some of the problems he has with painful motion. See January 2012 Correspondence. The Veteran has received several VA shoulder examinations, beginning in January 2008. He reported 4/10 constant pain, which increases to 8/10 burning dull achy pain 1 time per day with normal daily activity. He reported his activities of daily living including bathing, toileting, and eating remained intact. Limitations due to his left shoulder disability included inability to lift greater than 10 pounds, inability to do a push-up, and inability to lift things with his left arm. His range of motion flexion was 0 to 110 degrees. Abduction was 0 to 100 degrees. External rotation was 0 to 80 degrees. Internal rotation was 0 to 90 degrees. Ankylosis was not present. The Veteran received another VA shoulder examination in December 2010. Range of motion testing was performed. Flexion was 0 to 140 degrees. Abduction was 0 to 100 degrees. External rotation was 0 to 70 degrees. Internal rotation was 0 to 90 degrees. Ankylosis was not found to be present. There was objective evidence of pain following repetitive motion, but there were no additional limitations in range of motion after 3 repetitions. The examiner noted that an anchor was lost following the Veteran’s surgery and commented to “consider arthroscopy to attempt to recover this loose body.” The Veteran received another VA shoulder examination in January 2013, where he reported flare ups in his left shoulder that affect any lifting and sleeping on his left arm, and that it resolves in 0-1 days. His initial range of motion flexion was limited to 85 degrees, with painful motion beginning at 65 degrees. His left shoulder abduction was limited to 65 degrees, with painful motion beginning at 45 degrees. He was able to perform repetitive testing with 3 repetitions, with flexion limited to 85 degrees and abduction limited to 68 degrees. The examiner noted no additional limitation in ROM after repetitive testing but did report functional loss described as less movement than normal and pain on movement. The examiner noted localized tenderness or pain on palpitation of the joints/soft tissue/ biceps tendon of the shoulder. Muscle strength testing was performed, with 4/5 for both abduction and forward flexion in the left shoulder. The examiner found the Veteran to have ankylosis of the glenohumeral articulation or shoulder joint, with the severity reflecting abduction to 60 degrees and that the Veteran can reach his mouth and head. No instability, dislocation, or labral pathology of the shoulder was found. Flail shoulder, false flail shoulder, or fibrous union of the humerus was not found. No malunion of the humerus with moderate or marked deformity was found. The Veteran received another VA shoulder examination in October 2017, where he reported flare ups in his left shoulder that occur 5 times a month, where pain is increased relating to activity; he reported functional loss, stating “ no sports, can lift no more than 15-20 lbs. comfortably.” His initial range of motion flexion and abduction was limited to 160 degrees, and his external and internal rotation was limited to 90 degrees. There was no evidence of pain on weight-bearing. Passive range of motion was the same as active range of motion, and while pain was present on passive range of motion, the examiner stated it was the same as active range of motion. Repetitive testing was performed with no additional loss of function or range of motion after 3 repetitions. The examination was not conducted during a flare up, and the examiner was not able to estimate range of motion during a flare up. Muscle strength testing was performed, with 5/5 for both abduction and forward flexion in the left shoulder. The Veteran was not found to have ankylosis present. Flail shoulder, false flail shoulder, or fibrous union of the humerus was not found. No malunion of the humerus with moderate or marked deformity was found. Pain was noted on flexion and abduction. The Veteran received his most recent VA shoulder examination in September 2020. He reported flare ups in his left shoulder, which he described as recurrent shoulder pain, especially aching pain, which impacts his ability to lift heavy objects especially above his head and raise his arms above his head. His initial range of motion showed flexion and abduction were each limited to 180 degrees, respectively, and his external and internal rotation were each limited to 90 degrees. The Veteran was able to perform repetitive testing with 3 repetitions and no additional loss of function or range of motion. He reported pain on flexion, abduction, external rotation, and internal rotation. The examination was not conducted during a flare up, but the examiner was able to describe it in terms of range of motion, estimating full range of motion in the left shoulder. Muscle strength testing was performed, with 5/5 for both abduction and forward flexion in the left shoulder. The Veteran was not found to have ankylosis present. Flail shoulder, false flail shoulder, or fibrous union of the humerus was not found. No malunion of the humerus with moderate or marked deformity was found. Shoulder instability, dislocation, or labral pathology was not suspected. There was no objective evidence of pain on non-weight bearing. Based on the foregoing evidence, the Board finds, for the entire rating period on appeal from April 1, 2008 forward, the criteria for an initial disability rating in excess of 20 percent under DC 5201 for the left shoulder disability have not been met or more nearly approximated. The evidence throughout the rating period shows the left shoulder disability did not manifest in limitation of the left arm to 25 degrees from the side, the criteria for a 30 percent rating under DC 5201. At worst, with consideration of painful movement, the Veteran experienced pain at 45 degrees on abduction in his left shoulder, but was still able to abduct the shoulder to 65 degrees. See January 2013 VA examination. Thus, the criteria for a 30 percent rating have not been met or more nearly approximated at any time during the entire appellate period. See 38 C.F.R. § 4.7. Further, the Veteran's left shoulder disability has not been shown to be manifested by loss of head of the humerus, nonunion of the humerus, or recurrent dislocation of the humerus at the scapulohumeral joint. Accordingly, a higher rating under Diagnostic Code 5202 is not applicable. Id. While the January 2013 VA examiner did find evidence of ankylosis of the Veteran’s glenohumeral articulation, he indicated the severity as abduction to 60 degrees; can reach mouth and head, which is rated as 20 percent disabling under DC 5200. See 38 C.F.R. § 4.71a, DC 5200. For the foregoing reasons, the Board finds the preponderance of the evidence is against assignment of an initial disability rating in excess of 20 percent for the Veteran’s left shoulder disability for the entire rating period on appeal, under both the old and revised rating criteria. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. Entitlement to an initial rating in excess of 10 percent for service-connected status post cervical spine surgery with residuals, and in excess of 20 percent from September 8, 2020 forward is denied. The rating schedule provides for the evaluation of all disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Veteran’s service-connected status post cervical spine surgery with residuals (cervical spine disability) has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5238, which pertains to spinal stenosis. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. Id. Any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id., Note (1). Normal forward flexion of the cervical spine is from 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion from 0 to 45 degrees, and left and right rotation from 0 to 80 degrees. Id. The normal combined range of motion is 340 degrees. Id. Unfavorable ankylosis is 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., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Disabilities of the thoracolumbar and cervical spine segments are evaluated separately, except when there is unfavorable ankylosis of both segments, which is rated as a single disability. Id., Note (6). The above criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under DC 5243, IVDS may be evaluated under the General Rating Formula, as set forth above, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 10 percent rating is assigned if incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is assigned if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is assigned if the total duration is at least six weeks. Id. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. Id., Note (1). The revised schedule, in effect as of February 7, 2021, contemplating IVDS under DC 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5242, contemplating degenerative arthritis, save for its inclusion of degenerative disc disease other than IVDS. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). The Veteran stated that while he disagrees with the standards used to rate his disability, he does not have much of an argument related to his cervical spine disability other than the fact that his neck and back pain do not let him live the life he used to live. See January 2012 Correspondence. He stated that he cannot run or work out without causing serious pain, and that the doesn’t think he can make it past lunch without taking medication to curb the pain in his back and neck. See id. He stated that if he did not take his medication each morning, he would be unable to bend or turn his neck/back much until his medications took effect. See id. Turning to the evidence of record, a January 2008 VA examination report reflected the Veteran's cervical spine forward flexion was limited to 45 degrees with 1-2/10 pain from 0 to 45 degrees back to 0 degrees. A December 2010 VA examination report also reflected forward flexion limited to 45 degrees. Ankylosis, scoliosis, lordosis, and kyphosis were not found. The muscles of the spine were also examined, which did not show any spasm, atrophy, guarding, tenderness, or weakness. See December 2010 VA Examination. The Veteran reported a cervical spine surgery performed in 2007. He reported decreased motion, stiffness, and spine pain described as dull and achy; there was objective evidence of pain on active range of motion. His spine was found to have a normal gait. While objective evidence of pain was found following repetitive motion, there was no additional limitation after three repetitions of range of motion. An imaging study was performed, which found no acute abnormality involving the cervical spine. At a January 2013 VA examination, the Veteran reported chronic neck pain ranging 3/10 at best, which would increase to 8/10 with sudden neck movements including left side bending. The Veteran reported flare ups with these sudden neck movements. Initial range of motion testing was performed, with forward flexion limited to 45 or greater and no objective evidence of painful motion. The Veteran was able to perform repetitive testing, with flexion limited to 45 degrees or greater after 3 repetitions. Localized tenderness or pain to palpitation for the joints/ soft tissue of the cervical spine was found. Neither muscle spasm nor muscle atrophy were found. Intervertebral disc syndrome was found, with incapacitating episodes having a total duration of less than 1 week over the past 12 months. An October 2017 VA examination report reflected forward flexion limited to 45 degrees. The Veteran did not report flare ups. There was no evidence of pain with weight bearing. Repetitive testing was performed, with no additional loss of function or range of motion after 3 repetitions. Guarding and muscle spasm of the cervical spine were found, however these did not result in abnormal gait or abnormal spine contour. Intervertebral disc syndrome was not found. Ankylosis was not found. Finally, the Veteran’s most recent VA examination was performed in September 2020. The Veteran reported flare ups, described as recurrent neck pain, especially sharp pain with flare ups, which he stated impact his ability to lift things, in particular above his head, and to turn his head and/or look up or down in a normal manner. The Veteran’s initial range of motion forward flexion was limited to 25 degrees. He was able to perform repetitive testing with no additional loss in range of motion. There was no evidence of pain with weight bearing. While the examination was not conducted during a flare up, the examiner estimated that forward flexion would continue to be limited to 25 degrees during a flare up. Guarding or muscle spasm was not found in his cervical spine. Ankylosis and intervertebral disc syndrome were also not found. On review of the record, the Board finds that, prior to September 8, 2020, the disability picture presented by the Veteran's cervical spine disability does not warrant a rating in excess of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5238. Specifically, VA examinations indicate the Veteran's cervical spine disability was, at worst, manifested in forward flexion limited to 45 degrees. Prior to September 8, 2020, there is no indication that the Veteran's cervical spine resulted in forward flexion limited to between 15 degrees and 30 degrees, 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. He is thus entitled to the minimum compensable rating based on painful motion of the joint. See 38 C.F.R. § 4.59. Accordingly, the preponderance of the evidence is against a higher rating prior to September 8, 2020. The Board notes that the January 2013 examination report indicates that the Veteran has intervertebral disc syndrome. However, the examination report does not demonstrate that the Veteran has incapacitating episodes having a total duration of at least one week but less than 2 weeks during any 12-month period. 38 C.F.R. § 4.71, Diagnostic Code 5243. Thus, the criteria for a compensable disability rating under the Formula for Rating Intervertebral Disc Syndrome are not satisfied. The Board finds that, from September 8, 2020, forward, the criteria for a disability rating in excess of 20 percent rating have not been met. The September 2020 VA examination report reflected flexion limited to 25 degrees. At no point has the Veteran's cervical spine disability met the criteria for a higher, 30 percent rating. Rather, VA examination reports and post-service treatment records consistently show no findings of ankylosis of the cervical spine, and the Veteran's cervical spine forward flexion, at its worst, was measured to 25 degrees. There have been no findings of forward flexion of the cervical spine limited to 15 degrees or less. Further, there is no evidence showing incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during any 12-month period, so as to warrant a 40 percent rating under Diagnostic Code 5243. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 20 percent for a cervical spine disability from September 8, 2020, forward. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the claim is denied. 3. Entitlement to a 20 percent rating, but not higher, radiculopathy of the left upper extremity is granted, from April 1, 2008, forward. 4. Entitlement to a 20 percent rating, but not higher, radiculopathy of the right upper extremity is granted, from March 15, 2018, forward. As noted above, any associated neurologic abnormalities are rated separately under an appropriate diagnostic code. Id., Note (1). Here, the Veteran has been shown to have radiculopathy of the left upper extremity throughout the entire rating period and radiculopathy of the right upper extremity as of March 15, 2018. See January 14, 2008 VA examination report diagnosing radiculopathy of the left upper extremity; June 16, 2008 cervical spine MRI for left-sided radicular pain; VA treatment note dated March 16, 2018, showing complaints of right shoulder pain that radiates down right arm since March 15, 2018; December 17, 2018 VA Neurosurgery consult for complaints of pain radiating down his right arm with notation of a November 2018 cervical spine MRI showing a very large right C6/7 foraminal disc herniation into the foramina. DC 8513 pertains to paralysis of all radicular groups. 38 C.F.R. § 4.124a. Under DC 8513, a 20 percent rating is assigned for mild incomplete paralysis of both the major and minor upper extremities. A 40 percent rating is assigned for moderate incomplete paralysis involving the major upper extremity. A 30 percent rating is assigned for moderate incomplete paralysis involving the minor upper extremity. A 70 percent rating is assigned for severe incomplete paralysis involving the major extremity. A 60 percent rating is assigned for severe incomplete paralysis involving the minor extremity. A 90 percent rating is assigned for complete paralysis involving the major extremity. An 80 percent rating is assigned when complete paralysis involves the minor extremity. Id. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing DC’s 8510 through 8730. The Board finds that a 20 percent rating is warranted for radiculopathy of the left upper extremity from April 1, 2008, forward, and that a 20 percent rating is warranted for radiculopathy of the right upper extremity from March 15, 2018, forward. However, the evidence does not support a finding of moderate incomplete paralysis of either upper extremity so as to warrant a rating in excess of 20 percent. Neurological examination of the left upper extremity was essentially normal, including deep tendon reflexes, sensation, and motor findings, on VA examinations in January 2008 and December 2010. On VA examination in January 2013, reflexes in the left upper extremity were hyperactive and there was decreased sensation in the left shoulder. The examiner diagnosed left upper extremity radiculopathy, characterized as only mild. The October 2017 VA examiner found no evidence of radiculopathy of the left upper extremity, and the January 2020 VA examiner found no evidence of radiculopathy of either upper extremity. As such, the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent for the right and left upper extremities. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.