Citation Nr: 21022532 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-16 076 DATE: April 16, 2021 ORDER An effective date prior to February 12, 2012, for the grant of a separate compensable rating for right cervical radiculopathy is denied. REMANDED The issue of an initial rating of more than 20 percent since February 12, 2012, for cervical spine strain with degenerative arthritis and mild reversal of normal lordosis is remanded. The issue of an initial rating of more than 20 percent since February 12, 2012, for right cervical radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran’s right cervical radiculopathy is part of his cervical spine strain with degenerative arthritis and mild reversal of normal lordosis. 2. The Veteran’s December 2009 claim of service connection for right arm numbness was denied in a May 2017 Board decision and was not appealed. 3. The issue of an effective date prior to February 21, 2012, for the grant of service connection for cervical strain with degenerative arthritis was denied in a May 2018 Board decision and not appealed. The Court determined that issue was abandoned in an August 2019 Memorandum Decision. 4. The Board inadvertently granted an effective date of February 12, 2012, for an increased rating for the cervical spine disorder and for right cervical radiculopathy. CONCLUSION OF LAW The criteria for an effective date prior to February 12, 2012, for the grant of a separate compensable rating for right cervical radiculopathy have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1990 to April 1990 and from November 2007 to November 2009. He had additional service in the Army National Guard. He served in Southwest Asia. In an October 2018 decision and an August 2019 corrective order, the Board granted an initial rating of 20 percent for cervical strain with degenerative arthritis from February 12, 2012, to July 2, 2018; denied an initial rating of more than 20 percent for cervical strain with degenerative arthritis since February 12, 2012; and granted an initial 20 percent rating for right cervical radiculopathy since February 12, 2012. The Veteran subsequently appealed to the United States Court of Appeals for Veterans’ Claims (Court). In a July 2020 Memorandum Decision, the Court set aside the October 2018 Board decision and remanded the Veteran’s appeal to the Board. Entitlement to an earlier effective date for the grant of a separate compensable rating for right cervical radiculopathy. In its July 2020 Memorandum Decision, the Court raised the issue of an earlier effective date for right cervical radiculopathy. The Court noted the Veteran’s December 2009 claim of service connection for right arm numbness and report of pain at an April 2011 VA examination. The December 2009 claim was denied by the Board in May 2017 when it denied service connection for right upper extremity peripheral neuropathy. The Veteran did not appeal that decision and it is final. In May 2018, the Board denied an effective date prior to February 21, 2012, for the grant of service connection for cervical strain with degenerative arthritis. The Veteran did not appeal that issue and in an August 2019 Memorandum Decision, the Court determined it was abandoned. The Board is bound by these final decisions and to readjudicate the effective dates would be to violate the principle of res judicata. The right cervical radiculopathy is part of the cervical spine strain with degenerative arthritis and mild reversal of normal lordosis, and is rated as such. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1. Radiculopathy is a symptom of the cervical spine disorder and, therefore, cannot have an effective date earlier than that granted for the cervical spine disorder. As the Board determined that the proper effective date of the grant of service connection for the cervical spine disorder is February 21, 2012, and that decision is final, the Board cannot grant an effective date earlier than that date for right cervical radiculopathy. In its October 2018 decision, the Board granted the increased ratings for the cervical spine disorder and the right cervical radiculopathy with an effective date of February 12, 2012. It appears this was in error given the prior final Board decision stating that the proper effective date was February 21, 2012. However, because this is a benefit to the Veteran, the Board will not disturb this decision. Despite the Court having raised the issue, the Board does not have the authority to grant an earlier effective date. Therefore, an earlier effective date is denied. REASONS FOR REMAND 1. The issue of an initial rating of more than 20 percent since February 12, 2012, for cervical spine strain with degenerative arthritis and mild reversal of normal lordosis is remanded. 2. The issue of an initial rating of more than 20 percent since February 12, 2012, for right cervical radiculopathy is remanded. In the July 2020 Memorandum Decision, the Court stated that the Board relied on an April 2016 VA medical examination which was inadequate. The Veteran was last examined in August 2018 and that examination failed to comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 166 (2016), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board finds that a new examination which addresses the Veteran’s symptoms during the entire period on appeal is necessary. The matters are REMANDED for the following action: Schedule the Veteran for VA cervical spine and peripheral nerves examinations to obtain an opinion as to the nature of his cervical spine disorder with right upper extremity radiculopathy during the entire period on appeal. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The cervical spine examination report must comply with Correia, Mitchell, and Sharp and, therefore: (a.) must include range of motion testing on passive AND active motion. (b.) must address whether there is pain on weight bearing AND non-weight-bearing. (c.) must indicate the degree at which pain begins during each range of motion. (d.) must include an estimate of the degrees of range of motion lost during flare-ups AND following repeated use over time. The peripheral nerves examination must indicate all nerves which are impaired as a result of right upper extremity radiculopathy. The examiner should review the entire file and provide an opinion as to whether the Veteran’s cervical spine disorder and/or right cervical radiculopathy were worse at any time since February 12, 2012, than the current examination indicates. If the examiner concludes that the Veteran’s symptoms were worse at any time, they should provide a statement indicating the severity of the symptoms at their worst. If the examiner concludes that the Veteran’s symptoms were not worse than the most recent examination indicates, the examiner should so state. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rob Schwartz, Associate 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.