Citation Nr: 21027925 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-48 216 DATE: May 7, 2021 ORDER Entitlement to an increased disability rating of 30 percent, but no higher, for degenerative joint disease (DJD) of the cervical spine prior to May 20, 2019, is granted. Entitlement to a disability rating in excess of 30 percent for DJD of the cervical spine since May 20, 2019, is denied. Entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy is denied. Entitlement to a disability rating in excess of 20 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's cervical spine has been manifested by limitation of forward flexion to 15 degrees and complaints of pain with no evidence of ankylosis or the functional equivalent. 2. The Veteran's left upper extremity radiculopathy has manifested as no worse than mild incomplete paralysis. 3. The Veteran's right upper extremity radiculopathy has manifested as no worse than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating of 30 percent, but no higher, for DJD of the cervical spine prior to May 20, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a disability rating in excess of 30 percent for DJD of the cervical spine since May 20, 2019, are met.38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The criteria for entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8513. 4. The criteria for entitlement to a disability rating in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Air Force from December 1955 to December 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In November 2020, this appeal was remanded by the Board. The Board directed the RO to take the appropriate action to provide the Veteran's representative with the curriculum vitae for the VA examiner who conducted the December 2019 VA examination. In March 2021 notification letter, the RO provided the Veteran and his representative with the curriculum vitae for the December 2019 VA examiner. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in June 2016. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the November 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Cervical Spine The Veteran's cervical spine/neck condition is currently rated under Code 5242. Cervical spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The Board notes that there were extensive amendments to the rating schedule governing the musculoskeletal system, effective February 7, 2021. See 85 Fed Reg. 76453 (Nov. 30, 2020). However, the amendments do not impact the criteria applicable here. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine is 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 evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. In May 2014, the Veteran was afforded a VA examination. He was diagnosed with DJD of the cervical spine and spondylosis with neural foraminal encroachment. The Veteran noted that when he had flare-ups, he had pain and stiffness. He indicated that his neck would lock up and it made it impossible to turn. Initial range of motion (ROM) was as follows: forward flexion ended at 20 degrees, extension ended at 10 degrees, right and left lateral flexion ended at 15 degrees, right lateral rotation ended at 30 degrees, and left lateral rotation ended at 20 degrees. Post repetitive motion, ROM was as follows: forward flexion ended at 20 degrees, extension ended at 10 degrees, right lateral flexion ended at 15 degrees, right lateral rotation ended at 30 degrees, and left lateral rotation ended at 20 degrees. No testing of ROM after use over time was made. The Veteran had less movement than normal and pain on movement. He had tender paraspinal muscles. He did not have any guarding or muscle spasm. His muscle strength testing, reflex examination, and sensory examination was normal. He did not have muscle atrophy. He did not have radiculopathy. He did not have any other neurologic abnormalities related to his cervical spine. He did not have intervertebral disc syndrome (IVDS). He did not use any assistive devices for his condition. The examiner opined that the Veteran's cervical spine disability impacted his ability to work. The examiner noted that the Veteran's disability limited him from crawling and climbing ladders. The examiner noted that there were contributing factors of pain, weakness, fatigability, and/or incoordination. However, there was no additional limitation of functional ability of the cervical spine during flare-ups or repeated use over time. In July 2016, the Veteran was afforded a VA examination. The Veteran was diagnosed with DJD of the cervical spine. He reported that his pain did not allow him to put on shirts. He indicated that he now needed help completing tasks. Initial ROM was as follows: forward flexion ended at 20 degrees, extension ended at 15 degrees, right lateral flexion ended at 10 degrees, left lateral flexion ended at 15 degrees, right lateral rotation ended at 20 degrees, and left lateral rotation ended at 30 degrees. Pain was exhibited at forward flexion, extension, right and left lateral rotation, and right and left lateral flexion. There was no evidence of pain on weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine described as severe shooting pain. There was no additional loss of function or ROM after repetitions. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or flare-ups, but he did state that the Veteran's reports of such were consistent with the medical evidence. The examiner explained that the current examination showed only pain during ROM and there was no significant loss of motion observed during repetitive use. The Veteran had localized tenderness that did not result in an abnormal gait, or abnormal spinal contour. The Veteran had less movement than normal that was an additional contributing factor to his disability. He had a normal muscle strength testing. The Veteran did not have muscle atrophy. The Veteran had a normal reflex and sensory examination. He did not have any signs of radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis of the spine. He did not have IVDS of the cervical spine. The examiner opined that the Veteran's neck disability impacted his ability to work. The examiner explained that the Veteran's disability limited frequent crawling and climbing ladders. In March 2018, the Veteran was afforded a VA examination. The Veteran was diagnosed with DJD of the cervical spine. He described his flare-ups as stiffness and unable to move his neck from side-to-side. He reported his functional impairments as difficulty with lifting or carrying things. Initial ROM was as follows: forward flexion ended at 20 degrees, extension ended at 5 degrees, right lateral flexion ended at 20 degrees, left lateral flexion ended at 15 degrees, right lateral rotation ended at 20 degrees, and left lateral rotation ended at 25 degrees. ROM itself contributed to a functional loss. Pain was noted on examination that caused a functional loss. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing that did not cause additional loss of function or ROM. Pain significantly limited functional ability with repeated use of over period of time and flare-ups. The examiner was not able to describe in terms of ROM. He explained that he was unable to provide degree of additional ROM or functional loss because the Veteran did not indicate if flare-ups were always the same intensity. The examiner noted that this suggested flare-ups from a mild to severe magnitude with a difference in additional loss of ROM. The Veteran did not have guarding or muscle spasm of the neck. The Veteran had less movement than normal as an additional factor contributing to his disability. He had a normal muscle strength testing, reflex examination, and sensory examination. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have ankylosis of the spine. He did not have IVDS of the cervical spine. The examiner remarked that there was objective evidence of pain on passive ROM of the neck. There was objective evidence of pain on non-weightbearing testing of the neck. The examiner opined that the Veteran's neck disability impacted his ability to work. He explained that he was limited in lifting and carrying. The Veteran might be precluded in participating in occupations with high physical activities. A March 2019 VA treatment note documented his neck pain complaints. The Veteran reported that he was unable to move his neck. In May 2019, the Veteran testified that he had stiffness in his neck. He indicated that he now used an assistive device for his condition. He noted that he had trouble moving his neck up and down and side to side. In December 2019, the Veteran was afforded a VA examination. The Veteran was diagnosed with DJD of the cervical spine, IVDS, and cervical radiculopathy. The Veteran reported that he had constant neck pain, numbness, weakness, and tingling pain. The Veteran took Norco and Meloxicam for his condition. He reported that during his flare-ups he experienced pain for a few days. He indicated that he was not able to feed himself during his flare-ups. He had a functional loss/impairment described as dropping objects due to weakness in his grip. He needed a special pillow to prop his neck up. He was not able to lift over his head or bend his neck repetitively. The arthritis in his neck affected him swallowing. The Veteran had to see a speech therapist and modify his diet because of his condition. Initial ROM was as follows: forward flexion ended at 30 degrees, extension ended at 30 degrees, right lateral flexion ended at 5 degrees, left lateral flexion ended at 10 degrees, right lateral rotation ended at 15 degrees, and left lateral rotation ended at 15 degrees. The Veteran's ROM itself contributed to a functional loss. The examiner explained that he was unable to turn his head to look over his right shoulder. Pain was noted on the examination and pain caused a functional loss. The Veteran had posterior cervical central spinal pain with a moderate severity. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with no additional loss of function or ROM. Fatigue and weakness significantly limited functional ability with repeated use over a period of time and flare-ups. Described in terms of ROM for forward flexion ended at 30 degrees, extension ended at 30 degrees, right lateral flexion ended at 5 degrees, left lateral flexion ended at 10 degrees, right lateral rotation ended at 15 degrees, and left lateral rotation ended at 15 degrees. The Veteran did not have guarding or muscle spasm of the cervical spine. The Veteran had active movement against some resistance during muscle strength testing. He did not have muscle atrophy. He had some hypoactivity during the reflex examination. He had some decreased sensation to light touch in the hand/fingers during the sensory examination. The Veteran had IVDS of the cervical spine. The Veteran's symptoms of IVDS had episodes of bed rest having a total duration of at least 6 weeks during the past 12 months. The examiner noted that this was medical history as described by the Veteran only, without documentation. The Veteran was mostly in bed and only left his house for appointments. The Veteran's neck condition impacted his ability to work. The examiner noted that the Veteran was not able to tolerate any physical labor which involved lifting, driving, or gripping. The Veteran's fine motor movements were weak which caused difficulty for writing or typing. The Veteran's pain affected his focus and concentration. There was objective evidence of pain when the neck was used in non-weightbearing. The Veteran's passive ROM was the same as active ROM. The evidence of pain present on passive ROM was the same as active ROM. In January 2021, the Veteran was afforded a VA examination. The Veteran was diagnosed with DJD of the cervical spine and cervical radiculopathy. He reported that he had daily neck pain and radiculopathy. He noted that he treated his condition with physical therapy in the past. However, now he had no current treatment presently. He reported that he had flare-ups described as sharp pain and muscle tightening. He indicated that he had flare-ups 4 to 5 times a week. His flare-ups were caused by too much neck movement. He alleviated these factors by rest. He rated his flare-up severity as moderate. He had a functional loss/impairment described as not being able to do side to side movements. He had difficulty looking down. His initial ROM was as follows: 20 degrees for forward flexion, 15 degrees for extension, 5 degrees for right lateral flexion, 5 degrees for left lateral flexion, 10 degrees for right lateral rotation, and 10 degrees for left lateral rotation. There was pain noted on the examination. Passive ROM was the same as active ROM. There was pain exhibited on passive ROM. There was evidence pain on weightbearing, non-weightbearing, active motion, passive motion, and rest/non-movement. There was no objective evidence of crepitus. There was objective evidence of moderate trapezius tenderness. He was able to perform repetitive use testing. There was no additional loss of function or ROM after testing. Pain, fatigability, and lack of endurance significantly limited functional ability with repeated use over time and flare-ups. Estimated for ROM after repeated use of time and flare-ups was 10 degrees for forward flexion, 5 degrees for extension, 2 degrees for right lateral flexion, 2 degrees for left lateral flexion, 5 degrees for right lateral rotation, and 5 degrees for left lateral rotation. He did not have localized tenderness, guarding or muscle spasm of the cervical spine. He did not have additional contributing factors to his condition. He had a normal muscle strength testing, reflex examination, and sensory examination. He did not have ankylosis or muscle atrophy. He did not have IVDS of the cervical spine. He did not use any assistive devices for his condition. The examiner opined that the Veteran's condition impacted his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner explained that the Veteran could function in any work environment, sedentary or physical if it did not involve too much side to side looking. Prior to May 20, 2019 Based upon the foregoing, an increased 30 percent rating, but no higher, for the Veteran's neck condition is warranted prior to May 20, 2019. The Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. However, the finding of flexion to 20 degrees is further reduced to some extent during flare-ups, and with extended use over time. Although the 2014 examiner did not specifically opine, subsequent examiners stated that there was "significant" functional impact at those times, and though they declined to speculate as to limitation in degrees, they stated that the Veteran's reports of additional impairment were consistent with the medical findings. Resolving doubt in favor of the Veteran, the Board finds that flare-ups and extended use in at least an additional five degrees of limitation of flexion, warranting an increased 30 percent rating. However, as the Veteran retains some motion, ankylosis or the functional equivalent are not shown. Since May 20, 2019 The Veteran has never been found to have favorable or unfavorable ankylosis of the entire cervical spine or unfavorable ankylosis of the entire spine. Additionally, at its worst, the Veteran's forward flexion was 10 degrees. Under the current regulations, the only available ratings in excess of 30 percent requires unfavorable ankylosis of the entire cervical spine, which would be rated at 40 percent, or unfavorable ankylosis of the entire spine, which would be rated at 100 percent. No objective medical evidence has shown any ankylosis. Additionally, as the Veteran retains active motion, the functional equivalent of ankylosis is not shown. As such, a rating in excess of 30 percent is not warranted. Bilateral Upper Extremity Radiculopathy Under Diagnostic Code 8513 which evaluates paralysis of all radicular group nerves. Under this Diagnostic Codes, mild incomplete paralysis of the affected nerves is rated 20 percent disabling. Moderate incomplete paralysis of the affected nerves is rated 40 percent disabling. Severe incomplete paralysis of the affective nerves is rated 50 percent disabling under Diagnostic Code 8711 and rated 70 percent disabling under Diagnostic Code 8513. Complete paralysis of the affected nerves is rated 70 percent disabling under Diagnostic Code 8711 and 90 percent disabling under Diagnostic Code 8513. The term "incomplete paralysis" with this and other 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 partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. Id. The Board observes that the words "mild, "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 the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. For rating purposes, a distinction is made between major (dominant) and minor groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. The Veteran has reported being right-handed, left-handed, and ambidextrous; for rating purposes, the Veteran is considered right-hand dominant. The right is the more impaired limb, and by regulation is considered the dominant limb. 38 C.F.R. § 4.69. Thus, his service-connected radiculopathy of the right upper extremity disability involves his major extremity and his service-connected radiculopathy of the left upper extremity involves his minor extremity. At a December 2019 VA examination, the Veteran complained of shifting, intermittent, radiating symptoms, including numbness, weakness, and tingling pain in both arms. His hands and arms felt weak, and he would lose his grip. Objective testing showed mild, 4/5 muscle strength, but there was no atrophy. Some reflexes were reduced. Sensation was reduced in the left hand only. On the right, the Veteran was in constant mild pain, with intermittent severe flares. Numbness was mild, but moderate dysesthesia was noted. On the left, intermittent pain was no worse than mild; other findings were the same as on the right. Overall, the examiner opined impairment was severe on the right and moderate on the left. In January 2021, the Veteran was afforded a VA neck examination. The Veteran was diagnosed with cervical radiculopathy/bilateral upper extremity. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral upper extremities. He did not have constant pain in the bilateral upper extremities. He had a normal muscle strength testing, reflex examination, and sensory examination. He did not have muscle atrophy. The Board finds that the criteria for a rating in excess of 20 percent are not met. To warrant a higher evaluation, there must be moderately severe radiculopathy. The December 2019 VA examination report demonstrated that he had some hypoactivity during the reflex examination and some decreased sensation to light touch in the hand/fingers during the sensory examination. The Veteran had some had active movement against some resistance during muscle strength testing with no muscle atrophy. Overall, the examiner opined impairment was severe on the right and moderate on the left. However, the January 2021 VA examination report demonstrated that he had normal muscle strength testing, reflex examination, and sensory examination. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral upper extremities. He did not have constant pain in the bilateral upper extremities. He did not have muscle atrophy. The Veteran has described subjectively experiencing pain, numbness, and tingling in the both arms. He indicated this his hands and arms felt weak. The Board does not doubt the lay reports, but the characterizations are subject to personal interpretation, and the medical evidence is given greater probative weight. Given this, the objective medical findings at examination take on even more importance and probity. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. Higher initial ratings are not warranted because the medical evidence shows that the Veteran's bilateral radiculopathy of the upper extremities has manifested in symptoms best described as mild symptoms of bilateral upper extremity. The evidence does not indicate the Veteran experiences moderate symptoms which would warrant a 40 percent evaluation for his right upper extremity and a 30 percent evaluation for his left upper extremity. Symptoms are mainly sensory, with no impact on motor function or strength. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.