Citation Nr: 21025249 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-28 432 DATE: April 27, 2021 ORDER A rating in excess of 30 percent for service-connected cervical spine disability from October 14, 2020, is denied. REMANDED Entitlement to a rating in excess of 20 percent for cervical spine disability prior to October 14, 2020, is remanded. Entitlement to a rating in excess of 30 percent for service-connected right cubital tunnel syndrome prior to October 14, 2020 and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 20 percent for service-connected left cubital tunnel syndrome prior to October 14, 2020 and in excess of 30 percent thereafter is remanded. FINDING OF FACT From October 14, 2020, the Veteran’s cervical spine disability is not more nearly manifested by unfavorable ankylosis of the entire cervical spine; or, intervertebral disc syndrome (IVDS), with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, that requires bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW From October 14, 2020, the criteria for a rating in excess of 30 percent for cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to December 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the Veteran’s claims for increased ratings for his service-connected cervical spine disability and bilateral cubital tunnel syndrome. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties to the action submitted a Joint Motion for Remand (JMR) which was adopted by the Court in an Order issued in January 2020, vacating the Board’s decision in total. In June 2020, the Board remanded the claims for further development. During remand status, a November 2020 rating decision granted the Veteran a 30 percent disability rating for the Veteran’s service-connected cervical spine disability, effective October 14, 2020. A December 2020 rating decision granted the Veteran a 30 percent disability rating for the Veteran’s service-connected left upper extremity cubital tunnel syndrome and 40 percent disability rating for the Veteran’s service-connected right upper extremity cubital tunnel syndrome, effective October 14, 2020. Because these increases do not constitute a full grant of benefit sought on appeal, this matter is still before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a rating in excess of 30 percent for cervical spine disability from October 14, 2020. The Veteran, and his representative, contend that a higher rating is warranted. The Board concludes that, from October 14, 2020, the preponderance of the evidence is against a rating in excess of 30 percent for cervical spine disability. Neither the lay nor the medical evidence shows that the Veteran’s symptoms more nearly approximate the criteria for a higher rating. Cervical spine disability is not more nearly manifested by unfavorable ankylosis of the entire cervical spine; or, intervertebral disc syndrome (IVDS), with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, that requires bed rest prescribed by a physician and treatment by a physician. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. From October 14, 2020, the Veteran’s cervical spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, diagnostic code 5242 was assigned for degenerative arthritis of the spine (see also DC 5003) and diagnostic code 5243 for IVDS. As of February 7, 2021, under the amended criteria, diagnostic code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than IVDS (see also either DC 5003 or 5010). It also amends diagnostic code 5243 for IVDS allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise diagnostic code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was unchanged. The Formula for Rating intervertebral disc disease (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Criteria, 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 disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Criteria. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). VA examination report, dated in November 2020, shows the Veteran reported experiencing flare-ups, which he described as severe pain with daily chores at work and precipitated by movement, pain on stretching and inability to turn head fully to the right or left and up and down without pain. See C&P Exam (November 2020). On examination, the examiner noted no guarding, muscle spasm, or ankylosis. The report of examination additionally revealed IVDS. Range of motion (ROM) testing revealed forward flexion to 15 degrees with pain on examination and functional loss as well as pain on repeated use over time resulting in forward flexion to 15 degrees. There was no additional loss of function or ROM after observed repetitive use. As the examination was not conducted during a flare-up, estimated ROM testing reveals forward flexion to 15 degrees. Lastly, the report reveals objective evidence of pain on non-weight bearing and on passive range of motion testing. VA treatment records show complaints and treatment related to neck pain. For instance, VA treatment record, dated in May 2020, shows that the Veteran reported stiffness and a pain level of 8 out of 10 beginning a day earlier with pain radiating from his earlobe across his shoulder. He reported that he had trouble turning his head to the left, but that such was improved by the time of the call. See Medical Treatment Record - Government Facility (November 2020). Relieving factors included stretching, warm/hot compresses followed with cold compresses. Id. The facts of this case simply do not support the assignment of a rating in excess of 30 percent from October 14, 2020. First, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why Johnston and Spencer allow for denial of a claim for a higher rating based on ankylosis without considering flare-ups); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Second, even were the Board to accept that a higher rating may be assigned based on the functional impairment equivalent of ankylosis, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for cervical spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss, to include functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements, and that he experiences flare-ups, would not result in limitation of motion more nearly approximating unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The October 2020 VA examiner opined that, during flare-ups, the Veteran’s ROM was estimated to be the same as on initial ROM testing. Evidence showing unfavorable ankylosis of the entire cervical spine was not shown or suggested. Lastly, consideration has also been given to assigning a rating under the Formula for IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Neither the lay nor medical evidence more nearly reflects the criteria for a rating in excess of 30 percent or that the Veteran had other separately ratable manifestations, such as neurological impairment that have not already been rated. It is noted that the Veteran is in receipt of compensation for bilateral upper extremity cubital tunnel syndrome/cervical radiculopathy, and there is no indication of any other associated impairment. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating than assigned, the Veteran’s complaints along with the medical findings do not meet the schedular requirements for a higher rating. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 30 percent for cervical spine disability from October 14, 2020. Accordingly, the claim is denied. There is no reasonable doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent for cervical spine disability prior to October 14, 2020. The Veteran seeks a rating in excess of 20 percent prior to October 14, 2020. For reasons explained below, the Board finds that remand is necessary. Prior to October 14, 2020, the only examination of record was conducted in November 2012 and is inadequate for rating purposes because it does not provide necessary findings as to flare-ups, weight-bearing and non-weightbearing range of motion, and passive and active range of motion. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not “ascertain adequate information, i.e., frequency, duration, characteristics, severity, or functional loss regarding his flares by alternative means” and then “estimate the Veteran’s functional loss due to flares based on all the evidence of record including the Veteran’s lay information.” Sharp, 29 Vet. App. at 33. As noted by the United States Court of Appeals for Veterans Claims in Sharp, such findings are contemplated by the VA Clinician’s Guide. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 32 (quoting DeLuca, 8 Vet. App. at 206). In this instance, the November 2012 VA examination, although showing that the examiner inquired as to the flares, does not reveal any meaningful estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. Given the above, remand is warranted for retrospective findings that fully satisfy the requirements of Sharp and Correia. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). 3. Entitlement to a rating in excess of 30 percent for service-connected right cubital tunnel syndrome prior to October 14, 2020 and in excess of 40 percent thereafter. 4. Entitlement to a rating in excess of 20 percent for service-connected left cubital tunnel syndrome prior to October 14, 2020 and in excess of 30 percent thereafter. Issues 3 – 4: The Veteran contends that, due to his bilateral cubital tunnel syndrome, he continues to suffer from burning sensation in both arms and hands; his fine motor skills in both hands are significantly reduced; and his hand, arm and finger tremors reduce his ability to manipulate hand-held objects like pencil, tooth brush, screwdrivers and other small objects. See VA 21-4138 Statement In Support of Claim (May 2020). For reasons explained below, the Board finds that remand is necessary. The Board notes that the November 2020 VA examination indicates that bilateral carpal tunnel syndrome and bilateral cervical radiculopathy are separate and distinct diagnoses, unrelated to his service-connected bilateral upper extremity elbow/cubital tunnel and ulnar neuropathy diagnoses. The examiner provided that the Veteran reported left side numbness and paresthesia in the 2nd, 3rd, 4th fingers and the inner side of the 1st digit since carpal tunnel release as well as residual pain and tingling in the ulnar aspect of his arm and 4th and 5th fingers bilaterally. The examiner, however, provided that he was unable to determine the degree of potential symptom overlap. In other words, since the symptoms are similar, the examiner was unable to separate out the symptoms attributable to individual diagnoses. See C&P Exam (November 2020). The Board notes that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the Veteran’s service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). Here, the November 2020 VA examiner did not provide a rationale that specified whether he could not differentiate which symptoms were due to service-connected disability from other disabilities because of the nature of the symptoms overlap, due to limitations in his personal expertise, or because of other factors. Additionally, the Board notes that the November 2020 VA examination was based on inaccurate facts. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Specifically, the examiner listed the diagnoses to include bilateral cubital tunnel syndrome, left upper extremity carpal tunnel syndrome and bilateral upper extremity cervical radiculopathy. See C&P Exam (November 2020). He then provided that, for the bilateral “cubital tunnel syndrome there is no change in the diagnosis. carpal tunnel and bilateral cervical radiculopathy separate and unrelated to SC diagnoses of ulnar neuropathy at the elbow/cubital tunnel.” Id. However, the Board notes that the Veteran is currently rated for bilateral “cubital tunnel syndrome; cervical radiculopathy.” See Rating Decision-Codesheet (December 2020). In view of the incomplete findings, the Board believes that a remand is again necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lastly, the record reflects that additional relevant medical evidence pertaining to his claims for entitlement to increased ratings for his service-connected cubital tunnel syndrome of the bilateral upper extremities was associated with the Veteran’s file following the November 2020 VA examination. See Medical Treatment Record - Government Facility (November 2020). Here, the newly obtained VA treatment records show potentially additional or worsening symptoms of the Veteran’s service-connected bilateral cubital tunnel syndrome. An addendum medical opinion, including a retrospect opinion pursuant to Chiotta, should be obtained addressing these treatment records. The examiner should, to the extent possible, distinguish symptoms attributable to the service-connected cubital tunnel syndrome from those attributable to any other disorder that is not service connected (carpal tunnel). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from November 2020 to the Present. 2. Thereafter, obtain retrospective findings from an appropriate clinician to determine the severity of the Veteran’s service-connected cervical spine disability for the below identified past examinations. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). In rendering the below, the clinician should estimate the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. (a.) Provide an addendum retrospective opinion for the Veteran’s service-connected cervical spine disability to supplement the November 2012 VA Examination Report that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. ii. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran’s statements. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s service-connected bilateral cubital tunnel syndrome. The examiner must review the claims file and should note that review in the report. To the extent possible, with particular attention to the medical evidence received after the November 2020 VA examination, the examiner should identify and distinguish symptoms and impairment attributable to the Veteran’s service-connected bilateral cubital tunnel syndrome from those attributable to his nonservice-connected carpal tunnel syndrome. The examiner should then provide (a.) a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   (b.) an addendum retrospective opinion for the Veteran’s service-connected cubital tunnel syndrome to supplement the November 2012 VA Examination Report addressing VA treatment records and cubital tunnel syndrome symptoms contained therein from March 2012 to October 2020. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. James A. DeFrank Acing Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.