Citation Nr: 21024940 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-20 948 DATE: April 27, 2021 ORDER A 30 percent rating for cervical spine strain with degenerative disc disease (DDD) from May 18, 2018 is granted. A 20 percent rating for right upper extremity (RUE) radiculopathy prior to November 8, 2019 and a 30 percent rating thereafter is granted. A rating higher than 40 percent for skin sore from August 13, 2018 is denied. FINDINGS OF FACT 1. As of May 18, 2018, the Veteran’s cervical spine more closely approximated forward flexion limited to 15 degrees; ankylosis was not shown. 2. Prior to November 8, 2019, the Veteran’s right upper extremity radiculopathy more closely approximated a mild incomplete paralysis of his radicular group; thereafter, moderate incomplete paralysis was shown; severe incomplete paralysis was not shown at any time. 3. The Veteran’s skin sores have not been shown to contain characteristic lesions, require systemic therapy, have tissue loss, or any characteristic of disfigurement. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for cervical spine strain with DDD from May 18, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237 and 5242. 2. The criteria for a 20 percent rating prior to November 8, 2019, and a 30 percent rating thereafter for RUE radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8511. 3. The criteria for a rating higher than 40 percent for skin sores are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.118, DCs 7804 and 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to February 2011. The Veteran and his wife testified before the undersigned Veteran’s Law Judge in November 2019; a copy of the transcript is of record. In February 2020, the Board remanded these matters for additional development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture 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 is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Cervical Spine The Veteran cervical spine strain with DDD was assigned a 20 percent rating as of his February 2011 grant of service connection under DC 5237 and assigned a 30 percent rating as of his October 2020 VA examination under DC 5242. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. However, the ranges of motion used to evaluate disabilities of the spine under DCs 5237 and 5242 were not subject to revision. Under the General Rating Formula, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine and a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). At the outset, the Board finds that there is no evidence, including the Veteran’s hearing testimony, which indicates that the Veteran’s cervical spine had any degree of ankylosis. So, ratings higher than 30 percent are not supported by the record at any time. However, as of the Veteran’s May 18, 2018, VA examination, the Board finds that his cervical spine more closely approximated forward flexion to 15 degrees, which warrants a 30 percent rating. In the May 2018 VA examination, the Veteran reported flare-ups and pain aggravated by over-use. He stated that reported chiropractic care, TENS unit care, and medicinal care to treat his pain. His initial range of motion was found to be 20 degrees of forward flexion. Though the examiner noted flare-ups, there was no documented estimation of additional range of motion loss due to flare-ups. In his 2019 Board testimony, the Veteran reported that he felt popping and grinding and cracking in his neck. Based on the foregoing, the Board finds it reasonable to assume that the Veteran’s flare-up pain and limitation would more closely approximate a limitation of forward flexion to 15 degrees. Thus, a 30 percent rating as of May 18, 2018, is warranted. Prior to the May 2018 VA examination, there were no findings, even considering the Veteran’s reported flare-ups and pain on use which more closely approximated a limitation of flexion to 15 degrees or less. In prior VA examinations, the Veteran’s at worst limitation of flexion was to 25 degrees. See November 2013 VA examination. Furthermore, his 2015 and 2016 VA examinations found the Veteran’s cervical flexion was to 45 degrees. The Board has reviewed the Veteran’s VA and chiropractic care records and not found any estimation of the Veteran’s loss of motion or discussion of the Veteran’s flare-ups which more closely approximate a limitation of forward flexion to 15 degrees or less prior to his May 2018 VA examination. As such, a rating higher than 20 percent prior to May 18, 2018, is not supported by the record. RUE radiculopathy The Veteran’s RUE radiculopathy was assigned a 10 percent rating under DC 8716 as of his 2011 grant of service connection and a 30 percent rating under DC 8511 as of his October 2020 VA examination. The relevant diagnostic codes distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. 38 C.F.R. § 4.69. There is conflicting evidence in the record regarding the Veteran’s dominant arm. Different VA examinations have designated the Veteran’s right and left arm as his dominant arm. The Veteran’s 2019 hearing testimony was that his left arm is his dominant arm. As such, the Board will proceed with evaluation of the Veteran’s radiculopathy with his right arm as his minor extremity. Also, there is no evidence of record, including the Veteran’s own testimony, which indicates that his RUE has complete paralysis to any degree. Thus, the ratings under the relevant DCs regarding complete paralysis are inapplicable to the Veteran’s claim and will not be discussed in this Decision. DC 8716 provides ratings for paralysis of the ulnar nerve. Under DC 8716, ratings of 20 percent and 30 percent are assignable for incomplete paralysis of the ulnar nerve of the minor upper extremity, which is moderate or severe in degree, respectively. 38 C.F.R. § 4.124a. DC 8511 provides ratings for paralysis of the middle radicular group of nerves. Under DC 8511, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation. Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and severe incomplete paralysis warrants a 40 percent rating for the minor arm. 38 C.F.R. § 4.124a. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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. The Veteran’s initial 2013 VA examination noted mild incomplete paralysis of his right upper radicular group. DC 8510, which addresses disabilities of the upper radicular group, mirrors the ratings set forth in DC 8511. Thus, as the rating assigned for the upper and middle radicular groups result in the same ratings and contemplates the same manifestations, the Board will not change the Diagnostic Code under which the Veteran's radiculopathy of the RUE is rated. Under that criteria, the Veteran’s RUE radiculopathy warrants a 20 percent rating since his grant of service connection. Prior to his 2020 VA examination, the Veteran’s RUE radiculopathy has not been found to be more than mild. Indeed, in VA examinations in 2015 and 2016 the Veteran was not found to have radiculopathy or to have endorsed symptoms of radiculopathy. However, as of the Veteran’s November 2019 hearing testimony, the Board finds that his RUE radiculopathy was moderate. In his hearing the Veteran and his wife testified to the severity of his radiculopathy, indicating that the Veteran had reduced grip strength to the degree that he had dropped a significant number of dishes and glassware in their home. The Veteran testified that his right hand numbness was constant and encompassed the last three fingers of his right hand. As such, the Board finds that the Veteran’s RUE radiculopathy more closely approximated a moderate disability as of his November 8, 2019, hearing testimony. In sum, a 20 percent rating, but no higher, is warranted prior to November 8, 2019, and a 30 percent rating is warranted thereafter under DC 8511 for the Veteran’s RUE radiculopathy. Skin Sores The Board’s February 2020 Decision granted a 40 percent rating for the Veteran’s skin sores for the period prior to August 13, 2018, and remanded the period beginning on that date for further review due to revisions of the applicable DCs which took effect in August 2018. As such, the only period on appeal to the Board is the period beginning August 13, 2018. The Veteran’s skin sores are assigned a 40 percent rating under DCs 7806-7804 for five or more unstable and painful scars. The only ratings available higher than the 40 percent rating are for scars which have characteristic lesions which affect at least 40 percent of the affected area or body, or require constant or near-constant systemic therapy, or meet the 50 or 80 percent rating criteria for scars of the head, face, or neck, which requires tissue loss or characteristics of disfigurement. The Veteran’s October 2020 VA examination shows that he has one scar of the head face or neck which does not meet any of the criteria for a rating higher than 40 percent. The scar was 1 x 1 cm, had no tissues loss, and did not meet any of the characteristics of disfigurement. Additionally, the 2020 examiner did not find that any of the Veteran’s scars had characteristic lesions. There is no evidence that the Veteran uses systemic therapy for treatment of his sores, and he did not testify to such in his hearing. Thus, the Board does not find that the evidence of record supports a rating higher than 40 percent as of August 2018 for the Veteran’s skin sores. The Board also notes that the Veteran was additionally service connected for scars associated with his skin sores in a November 2020 rating decision. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.