Citation Nr: 21030252 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 07-25 319 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 20 percent from July 7, 2011 to July 13, 2016, for cervical radiculopathy of the left upper extremity is denied. Entitlement to a compensable rating from July 14, 2016 to June 9, 2020, for cervical radiculopathy of the left upper extremity is denied. Entitlement to a rating of 20 percent from July 10, 2006 to April 23, 2012, for cervical radiculopathy of the right upper extremity is granted. Entitlement to rating in excess of 20 percent from April 24, 2012 to July 13, 2016, for cervical radiculopathy of the right upper extremity is denied. REMANDED Entitlement to a rating in excess of 20 percent for cervical spondylosis s from June 7, 2011 to May 24, 2016, and from August 1, 2016, to the present, is remanded. Entitlement to a rating in excess of 20 percent as of June 10, 2020, for cervical radiculopathy of the left upper extremity is remanded. Entitlement to a compensable rating as of July 14, 2016, for cervical radiculopathy of the right upper extremity is remanded. FINDINGS OF FACT 1. From June 7, 2011 to July 13, 2016, the Veteran had a mild level of cervical radiculopathy of the left upper extremity. 2. From July 14, 2016 to June 9, 2020, the Veteran's cervical radiculopathy of the left upper extremity was asymptomatic. 3. From July 10, 2006 to April 23, 2012, the Veteran had a mild level of cervical radiculopathy of the right upper extremity. 4. From April 24, 2012 to July 13, 2016, the Veteran had a mild level of cervical radiculopathy of the right upper extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent from June 7, 2011 to July 13, 2016, for cervical radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 8510. 2. The criteria for entitlement to a compensable rating from July 14, 2016 to June 9, 2020, for cervical radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 8510. 3. The criteria for entitlement to a rating of 20 percent from July 10, 2006 to April 23, 2012, for cervical radiculopathy of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 8510. 4. The criteria for entitlement to a rating in excess of 20 percent from April 24, 2012 to July 13, 2016, for cervical radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1984 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of an Agency of Original Jurisdiction (AOJ)of the Department of Veterans Affairs (VA). The procedural history for this matter is long. In relevant part, the AOJ service connected the Veteran's cervical disorder in January 2006. It rated the disorder as 10 percent disabling effective September 1, 2005, the day after the Veteran's separation from service. The Veteran appealed the rating. As the appeal was pending, the AOJ, in August 2011, increased the rating to 20 percent disabling effective July 7, 2011. In September 2012, the Board a) denied a rating greater than 10 percent from September 1, 2005 to June 3, 2006, b) granted a 20 percent rating from June 4, 2006 to July 6, 2011, and c) denied a rating greater than 20 percent from July 7, 2011. The Veteran, satisfied with his rating from September 1, 2005 to July 6, 2011, appealed the rating the Board assigned from July 7, 2011 to the United States Court of Appeals for Veterans Claims (the Court). In a March 2013 Order, the Court granted a Joint Motion for Partial Remand (JMR), vacating that portion of the Board's September 2012 decision the Veteran challenged, and it remanded the issue to the Board for action consistent with the JMR. In January 2014, the Board remanded the issue for further evidentiary and procedural development in accordance with the JMR. While the issue was in remand status with the AOJ, the Veteran filed a claim for a temporary total evaluation based on post-surgical convalescence due to cervical spine surgery performed in May 2016. In August 2016, the AOJ granted a 100 percent rating for convalescence from May 25, 2016, to July 31, 2016, reinstating the 20 percent rating on August 1, 2016. Because the AOJ rated the Veteran's cervical disorder as 100 percent disabling during this window, this period is not on appeal and is therefore not reflected on the title page. Increased Rating A disability rating is determined by the application of VA's 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words "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 the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent from July 7, 2011 to July 13, 2016, for cervical radiculopathy of the left upper extremity 2. Entitlement to a compensable rating from July 14, 2016 to June 9, 2020, for cervical radiculopathy of the left upper extremity 3. Entitlement to a rating of 20 percent from July 10, 2006 to April 23, 2012, for cervical radiculopathy of the right upper extremity 4. Entitlement to rating in excess of 20 percent from April 24, 2012 to July 13, 2016, for cervical radiculopathy of the right upper extremity The Veteran's bilateral cervical radiculopathy is currently rated under Diagnostic Code 8510. 38 C.F.R. § 4.71a, Diagnostic Code 8510. The Veteran was assigned a 20 percent disability rating from June 7, 2011 to July 13, 2016, for his cervical radiculopathy of the left upper extremity. From July 14, 2016 to June 9, 2020, the Veteran was assigned a noncompensable rating for his cervical radiculopathy of the left upper extremity. The Veteran was assigned an initial noncompensable disability rating from July 10, 2006 to April 23, 2012, for his cervical radiculopathy of the right upper extremity. From July 14, 2016 to June 9, 2020, the Veteran was assigned a 20 percent disability rating for his cervical radiculopathy of the right upper extremity. The Board notes that the Veteran's right hand is his dominant hand. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group of nerves (fifth and sixth cervical). Diagnostic Code 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the typical picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The Board notes 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. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All of the evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes that a VA medical examiner has stated that the Veteran's disability involves paralysis of the upper radicular group and Diagnostic Code 8510 pertains specifically to the disability at issue. Thus, the evidence does not support application of an alternate diagnostic code in this matter. The evidence of record reflects that the Veteran has been diagnosed with bilateral upper extremity radiculopathy. The record also reflects that the Veteran's C8/T1 nerve roots were affected by the Veteran's cervical condition. Turning to the medical evidence at hand, since July 10, 2006, the evidence has shown that the Veteran was diagnosed with cervical radiculopathy and disc protrusions, which was related to his service-connected neck condition. A VA examination dated July 2011 noted that, with cervical flexion, the Veteran had pain down his left upper extremity and MRI imagery showed true radiculopathy. There is no indication of upper extremity radiculopathy or sensory deprivation bilaterally as demonstrated on physical examination, and there is no indication of upper extremity muscle wasting or loss of strength bilaterally. A VA neurosurgery report dated April 2012 noted mild right extremity tremors, weakness, and pain that radiates up the extremity. On May 2016, the Veteran underwent surgery for his cervical spine. In July 2016, a VA examination for his cervical spine revealed that his bilateral cervical radiculopathy had become asymptomatic. On September 2019, a VA examiner reviewed the applicable private treatment records and described the Veteran's disability as asymptomatic, as to his bilateral upper extremity radiculopathy. From June 7, 2011 to July 13, 2016, for cervical radiculopathy of the left upper extremity The Board finds that the Veteran's left upper extremity radiculopathy remained consistent from June 7, 2011 to July 13, 2016, and that a rating of 20 percent, but not higher, is warranted. After a review of the record, the Board finds that the Veteran's condition is best represented by a mild level of severity for this period on appeal. The Board has considered a rating in excess of 20 percent from June 7, 2011 to July 13, 2016; however, the evidence does not demonstrate that the Veteran's condition exhibited signs or symptoms of moderate incomplete paralysis of the upper left radicular group. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's left upper extremity radiculopathy more nearly approximates the criteria for a 20 percent disability. Therefore, the Veteran is entitled to a rating of 20 percent, but no higher, from June 7, 2011 to July 13, 2016. From July 14, 2016 to June 9, 2020, for cervical radiculopathy of the left upper extremity The Board finds that the Veteran's left upper extremity radiculopathy remained consistent from July 14, 2016 to June 9, 2020, and that a rating of noncompensable rating was warranted. After a review of the record, the Board finds that the Veteran's condition is best represented by asymptomatic symptoms for his cervical radiculopathy of the left upper extremity for this period on appeal. The Board notes that both the July 2016 and September 2019 VA examinations noted that the Veteran's cervical spine surgery seemingly resolved his radiculopathy of the left upper extremity and was considered asymptomatic. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's left upper extremity radiculopathy was asymptomatic from July 14, 2016 to June 9, 2020. Therefore, the Veteran is not entitled to a compensable rating, from July 14, 2016 to June 9, 2020. From July 10, 2006 to July 13, 2016, for cervical radiculopathy of the right upper extremity In sum, the Board finds that the Veteran's right upper extremity radiculopathy remained consistent, from July 10, 2006 to July 13, 2016, with at least mild symptoms, and that a rating of 20 percent, but not higher, is warranted. After a review of the record, the Board finds that the Veteran's condition is best represented by a mild level of severity. Specifically, the Board notes that the initial noncompensable rating from July 10, 2006 to April 23, 2012, was based on evidence of a disability without noting the symptoms related to the disability. Therefore, giving the Veteran the benefit of the doubt, it will interpret the manifested symptoms of at least a mild level, which was subsequently confirmed in the April 2012 VA neurosurgery report. The Board has considered a rating in excess of 20 percent from July 10, 2006 to July 13, 2016; however, the evidence does not demonstrate that the Veteran's condition exhibited signs or symptoms of moderate incomplete paralysis of the upper right radicular group. Based on the foregoing, and resolving all doubt in the Veteran's favor, the Board concludes that the Veteran's right upper extremity radiculopathy more nearly approximates the criteria for a 20 percent disability. Therefore, the Veteran is entitled to a rating of 20 percent, but no higher, from July 10, 2006 to July 13, 2016. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for cervical spondylosis s from June 7, 2011 to May 24, 2016, and from August 1, 2016, to the present, is remanded. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claim may be adjudicated on the merits. The Court's holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) requires that the claim be remanded. 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." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. 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 10. While flare-ups are noted on the Veteran's September 2019 VA examination, opinions with respect to the extent of functional impairment are not present and therefore, a retroactive opinion is warranted in light of Sharp. The September 2019 VA examination did not provide an adequate opinion to comply with Sharp. Accordingly, a new examination with a retrospective opinion is required to address the extent of the Veteran's functional loss during flare-ups. 2. Entitlement to a rating in excess of 20 percent as of June 10, 2020, for cervical radiculopathy of the left upper extremity is remanded. 3. Entitlement to a compensable rating as of July 14, 2016, for cervical radiculopathy of the right upper extremity is remanded. As development of the Veteran's increased rating claim for his cervical spine disability, remanded herein, could provide additional information concerning the current condition of Veteran's bilateral upper extremity, the Board finds adjudication of these issues would be premature and the appeal must be remanded for adjudication following such development. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination, by a new VA examiner. The VA examiner shall the appropriate expertise to determine the severity of the Veteran's service-connected neck disability and provide a retrospective opinion of the severity of the disability at the time of the September 2019 VA examination. The Veteran's entire claims file, to include a copy of this decision, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the Veteran an examination. As the existence of flare-ups were noted during the September 2019 VA examination for the service-connected neck disability, the examiner should also address the functional loss the Veteran experienced during flare-ups around the time of the September 2019 VA examination. The examiner should provide a retrospective opinion in order to identify the extent of the Veteran's functional loss during flare-ups. To the examiner's best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The examiner is advised that the Veteran is competent to report injuries and symptoms, and her reports must be considered and discussed in formulating the requested opinions. If her reports are discounted, the examiner should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.