Citation Nr: 21030698 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-06 315 DATE: May 19, 2021 ORDER A rating higher than 20 percent for cervical spondylitis between June 8, 2009 and January 12, 2015, is denied. A 30 percent rating, and no higher, for cervical spondylitis is granted effective January 12, 2015. A rating higher than 40 percent for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis from January 12, 2015, is denied. An initial rating higher than 30 percent for radiculopathy of the left upper extremity is denied. An initial rating higher than 20 percent for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran's cervical spine disability was not manifested by forward flexion to 15 degrees or less; or, favorable ankylosis of the entire cervical spine, at any time between June 8, 2009 and January 12, 2015. 2. The Board resolves all doubt in favor of the Veteran by finding that beginning with the January 12, 2015 VA examination, cervical spine findings more nearly approximate the criteria for a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine based on functional impairment. 3. The Veteran's degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of unfavorable ankylosis during flare-ups, at any time from January 12, 2015. 4. The Veteran has no more than moderate incomplete paralysis affecting the left upper extremity radicular groups and the left lower extremity sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for cervical spondylitis between June 8, 2009 and January 12, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a 30 percent rating, and no higher, for cervical spondylitis have been met as of January 12, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a rating higher than 40 percent for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis from January 12, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for an initial rating higher than 30 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 5. The criteria for an initial rating higher than 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1966 to July 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent ratings assigned for epiphysitis of the spine with dorsal kyphosis, degenerative changes of the lumbar spine, and cervical spondylitis; and granted service connection for radiculopathy of the left upper and lower extremities with 10 percent ratings assigned effective February 26, 2009. In a January 2012 rating decision, the ratings assigned for radiculopathy of the left upper and lower extremities were increased to 20 percent, effective February 26, 2009; the rating for cervical spondylitis was increased to 20 percent effective June 8, 2009. The Veteran and his wife presented testimony at a personal hearing before the undersigned Veterans Law Judge in June 2012. A transcript is of record. The claims were remanded by the Board in November 2014 for additional development. In a February 2015 rating decision, the agency of original jurisdiction (AOJ) granted a 40 percent rating for degenerative changes of the lumbar spine associated with epiphysitis of the spine with dorsal kyphosis, but failed to close out the separate 10 percent rating for the epiphysitis of the spine with dorsal kyphosis. The law does not permit the dorsal and lumbar spines to be evaluated separately. The AOJ's failure to combine the disability into a single condition when awarding the 40 percent rating effective January 12, 2015, was erroneous. The Board issued a decision in September 2017 that recharacterized the thoracolumbar spine claims as entitlement to evaluations higher than 10 percent for separately rated epiphysitis of the spine with dorsal kyphosis and degenerative changes of the lumbar spine, prior to January 12, 2015; and entitlement to an evaluation higher than 40 percent from January 12, 2015, for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis, to reflect the correct disability. The Board denied ratings in excess of 10 percent for epiphysitis of the spine with dorsal kyphosis and 10 percent for degenerative changes of the lumbar spine for the period of the claim prior to January 12, 2015; determined that degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis is to be rated as a single disability and denied a rating higher than 40 percent for the period of the claim as of January 12, 2015; denied a rating higher than 10 percent for cervical spondylitis for the period of the claim prior to June 8, 2009; denied a rating higher than 20 percent for cervical spondylitis for the period of the claim as of June 8, 2009; granted an initial 30 percent rating for radiculopathy of the left upper extremity; and denied an initial rating higher than 20 percent for radiculopathy of the left lower extremity. The Veteran appealed the Board's September 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 Joint Motion for Partial Remand, the parties requested that the Court vacate the September 2017 Board decision that denied entitlement to: (1) evaluations in excess of 10 percent for separately rated epiphysitis of the spine with dorsal kyphosis and degenerative changes of the lumbar spine, prior to January 12, 2015; (2) an evaluation greater than 40 percent from January 12, 2015 for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis (and to be rated as a single disability); (3) a rating higher than 20 percent from June 8, 2009, for cervical spondylitis; (4) an initial evaluation greater than 20 percent for radiculopathy of the left upper extremity; and, (5) an initial evaluation greater than 20 percent for radiculopathy of the left lower extremity. The claim for an evaluation greater than 10 percent for cervical spondylitis prior to June 8, 2009, was not a part of the motion. In a July 2018 Order, the Court granted the Joint Motion. The Board notes that although the Joint Motion specifically indicated that the parties did not wish to disturb the Board's grant of an initial 30 percent rating for radiculopathy of the left upper extremity, the parties consistently cited the issue of an initial evaluation greater than 20 percent for radiculopathy of the left upper extremity as part of the motion. The Board finds that while poorly worded, the Joint Motion appears to include the issue of entitlement to an initial evaluation greater than 30 percent for radiculopathy of the left upper extremity and will consider that issue. In February 2019, the Board denied ratings higher than 10 percent for epiphysitis of the spine with dorsal kyphosis and degenerative changes of the lumbar spine for the period of the claim prior to January 12, 2015. The claims for a rating higher than 20 percent for cervical spondylitis from June 8, 2009; a rating higher than 40 percent for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis from January 12, 2015; an initial rating higher than 20 percent for radiculopathy of the left lower extremity; and an initial rating higher than 30 percent for radiculopathy of the left upper extremity, were remanded. Since the AOJ last considered the appeal, additional evidence has been submitted. As the medical evidence is a resubmission of evidence already of record and the argument is cumulative of assertions previously made, initial review of the evidence by the Board is appropriate. Finally, in the September 2017 Board decision, it was noted that an inferred claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was denied in a March 2012 rating decision, and the Veteran submitted a statement in May 2012 specifically indicating that denial was not being appealed. See May 2012 VA Form 21-4138. In a statement received January 27, 2015, the Veteran asserted that his disabilities have affected daily work efforts and that he had been unable to do manual labor. Such statement was inferred as a new claim for TDIU. In an April 2018 rating decision, the RO granted TDIU effective January 27, 2015, the date of inferred claim. The Veteran has not challenged the effective date assigned for TDIU. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings higher than 20 percent pertinent to the cervical spine are provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); and unfavorable ankylosis of the entire cervical spine (40 percent). Id. Ratings higher than 40 percent pertinent to the lumbar spine are provided for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is 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; gastro- intestinal 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Alternatively, intervertebral disc syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. The rating criteria for neurological conditions and convulsive disorders is provided under 38 C.F.R. § 4.124a. Diagnostic Codes 8511, 8611, and 8711 provide ratings for paralysis, neuritis, and neuralgia of the middle radicular group. Ratings of 20, 30 and 40 percent are assigned for incomplete paralysis of the minor extremity that is mild, moderate, and severe, respectively. A 60 percent rating is assigned for complete paralysis of the minor middle radicular group; adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. Diagnostic Codes 8515, 8615, and 8715 provide ratings for paralysis, neuritis, and neuralgia of the median nerve. Ratings of 10, 20 and 40 percent are assigned for incomplete paralysis of the minor extremity that is mild, moderate, and severe, respectively. A 60 percent rating is assigned for complete paralysis of the median nerve; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. The note following 38 C.F.R. § 4.124a, Diagnostic Code 8719, provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Ratings of 10, 20, 40 and 60 percent are assigned for incomplete paralysis that is mild, moderate, moderately severe, and severe, with marked muscle atrophy, respectively. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Diagnostic Codes 8521, 8621, and 8721 provide ratings for paralysis, neuritis, and neuralgia of the external popliteal nerve (common peroneal). Ratings of 10, 20 and 30 percent are assigned for incomplete paralysis that is mild, moderate, and severe, respectively. A 40 percent rating is assigned for complete paralysis of the external popliteal nerve; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. In rating diseases of the peripheral nerves, to include the sciatic and radicular nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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 ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology 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 arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957, see also Butts, 5 Vet. App. at 538. The Veteran is in receipt of separate ratings for radiculopathy involving the left upper and left lower extremities; thus, symptomatology associated with those disabilities cannot be considered in assigning a rating for the cervical or lumbar spine disabilities under the General Rating Formula. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). 1. A rating higher than 20 percent for cervical spondylitis from June 8, 2009. Upon consideration of the evidence and resolving all doubt in favor of the Veteran, the Board finds a 30 percent rating is warranted for cervical spondylitis effective January 12, 2015. It was on this date that cervical spine findings more nearly approximate the criteria for a 30 percent rating under the General Rating Formula for Diseases and Injuries of the Spine based on functional impairment. During the January 12, 2015, VA examination, the Veteran exhibited right and left lateral rotation on range of motion testing to 45 and 40 degrees, respectively, which represents a loss of 35 and 40 degrees from normal, and the examiner noted that these findings contributed to functional loss because the Veteran had difficulty turning his head and neck. With repetitive use testing at the time of that examination, right lateral rotation was further reduced to 25 degrees and left lateral rotation was further reduced to 20 degrees, with the VA examiner noting that the additional loss of function/motion after three repetitions was due to pain and weakness. In addition, during a December 2019 VA examination, pain was noted with left lateral flexion and left lateral rotation, and sharp and dull pain was noted at the lower cervical spine and base of neck. The examiner determined that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. At the time of an October 2020 VA examination, while range of motion testing was reported as normal, the Veteran was only able to perform range of motion testing once and there was objective evidence of pain with all ranges of motion, as well as moderately severe pain over C-3, C-4, C-5 and C-6 during that testing. Repetitive motion was not evaluated in October 2020 because of pain and the VA examiner determined that pain significantly limits functional ability with repeated use over a period of time; that pain and weakness significantly limit functional ability with flare up; and that there was a worsening of the cervical spine condition characterized by daily pain episodes and loss of left hand grip strength. These findings more nearly approximate the criteria for a 30 percent rating under the General Rating Formula due to functional impairment and the effects of pain on functional abilities effective January 12, 2015. A rating higher than 30 percent is not warranted as of that date under the General Rating Formula in the absence of unfavorable ankylosis of the entire cervical spine or evidence of the functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *4) (Apr. 16, 2021). A rating higher than 30 percent is not warranted as of that date under the IVDS Formula in the absence of IVDS with incapacitating episodes as defined by VA regulation having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A rating higher than the 20 percent rating currently assigned for cervical spondylitis between June 8, 2009 and January 12, 2015, is not warranted. The Board acknowledges the Veteran's assertions concerning the symptoms he experienced during that timeframe because of his cervical spine disability. To merit the assignment of the next highest (30 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The evidence in this case does not show either. Rather, the Veteran's cervical spine exhibited forward flexion limited, at worst, to 30 degrees at the time of the December 2010 VA examination, and there is no evidence of ankylosis. See VA examination reports; VA and private treatment records. The Board notes that chiropractic treatment records predominantly do not contain actual range of motion measurements for the cervical spine and the January 2014 one that does showed normal flexion of the cervical spine. The assignment of a rating higher than 20 percent for the Veteran's cervical spine disability is also not warranted between June 8, 2009 and January 12, 2015, under the IVDS Formula because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected cervical spine disability between June 8, 2009 and January 12, 2015. The Board acknowledges the Veteran's subjective complaints related to functional loss and functional impairment made in written statements and during his Board hearing and the VA examinations conducted in February 2009, June 2009, December 2010, and March 2012. The Board also acknowledges the objective evidence during the June 2009 VA examination of moderate difficulty and mild to moderate pain during range of motion testing and pain throughout repetitive motion testing with mild weakness and fatigue, but no incoordination; during the December 2010 VA examination of mild to moderate pain, moderate weakness, and moderate fatigue on repetitive motion testing, but no incoordination; and during the March 2012 VA examination of painful motion during the entire range of motion with all motions as well as additional limitation in range of motion of the cervical spine and functional loss and/or functional impairment of the cervical spine after repetitive-use testing in the form of less movement than normal, weakened movement, and pain on movement. In this case, however, the Board does not find any additional functional loss that is not contemplated by the currently assigned 20 percent rating between June 8, 2009 and January 12, 2015. The Veteran described additional motion loss or functional impairments during flare-ups and after repetitive use during this timeframe and several VA examiners determined that the Veteran's cervical spine functional ability was impacted by pain, weakness, and fatigue. However, the Veteran only exhibited a loss of five degrees of flexion following repetitive motion at the time of the March 2012 and there was no reported loss of motion after repetitive use testing on the examinations prior to this date. The Joint Motion determined that the examinations upon which the Board relied in its prior decision denying a rating higher than 20 percent for cervical spondylitis as of June 8, 2009, did not adequately discuss the question of flare-ups, to include any effects of such flare-ups on the Veteran's functioning, such as range of motion, and that the examinations did not explain why such an estimate could not be provided based on speculation. The Board remanded the claim for an examination that addressed the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups from June 2009 to the present. The retrospective opinion was provided in October and November 2020. During the October 2020 VA examination, the examiner was unable to evaluate loss of range of motion with repetition as the Veteran's pain was too great at the time of examination but noted that range of motion had varied throughout prior examinations, which was expected depending on pain level for that particular day. In the November 2020 addendum, the examiner noted that while the examination was not conducted during a flare up, the Veteran's pain intensified after one round of motion and that to the best of his/her abilities, the estimated range of motion during periods of flare-ups would be 45 degrees of flexion and extension, 35 degrees of bilateral lateral flexion, and 60 degrees of bilateral lateral rotation. In short, the examiner found only lateral flexion and lateral rotation would be impacted during periods of flareup. These measurements only represent a loss of 10 degrees of normal lateral flexion and a loss of 20 degrees of normal lateral rotation. The estimated loss of motion reported also do not support a finding of the functional equivalent of ankylosis during flare-ups to support a rating higher than 20 percent between June 8, 2009 and January 12, 2015. Considering the foregoing, the Board finds that a rating higher than the 20 percent rating assigned for the Veteran's cervical spine disability is not warranted based on functional impairment between June 8, 2009 and January 12, 2015. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran's service-connected cervical spine disability manifests any associated objective neurologic abnormalities other than the separately rated radiculopathy of the left upper extremity. However, the record does not reflect other neurological disabilities associated with the cervical spine disability; and, as noted above, the symptoms associated with the separately rated radiculopathy of the left upper extremity may not be considered when evaluating the service-connected cervical spondylitis. See 38 C.F.R. § 4.14. 2. A rating higher than 40 percent for degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis from January 12, 2015. The preponderance of the evidence is against the assignment of a rating higher than 40 percent for the degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis from January 12, 2015. The Board acknowledges the Veteran's assertions concerning the symptoms he experienced because of his lumbar spine disability during the course of the claim since this date. To merit the assignment of the next highest (50 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran has ankylosis of the entire thoracolumbar spine. The evidence in this case does not support such a finding. Rather, the Veteran was able to achieve flexion to 35 degrees, extension to 50 degrees, bilateral lateral flexion and left lateral rotation to 20 degrees, and right lateral rotation to 25 degrees during the January 12, 2015, VA examination; flexion to 30 degrees, extension and left lateral flexion to 10 degrees, right lateral flexion to 20 degrees, and bilateral lateral rotation to five degrees during a March 2018 VA examination; and flexion and right lateral rotation to 15 degrees, extension to 10 degrees, and lateral flexion and left lateral rotation to five degrees during a December 2019 VA examination. All examiners specifically noted the absence of ankylosis. There is also no evidence of the functional equivalent of unfavorable ankylosis during flare-ups. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *4) (Apr. 16, 2021). Nor is the assignment of a rating higher than 40 percent for the Veteran's degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis warranted under the IVDS Formula as of January 12, 2015. This is so because there is no evidence of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In addition, the examiners who conducted the March 2018 and December 2019 VA examinations noted there had been no incapacitating episodes as defined by VA regulation. The Board has considered whether the Veteran's service-connected degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis manifests any associated objective neurologic abnormalities during the appeal period other than the separately rated radiculopathy of the left lower extremity. The record, however, does not reflect other neurological disabilities associated with the lumbar spine disability; and, as noted above, the symptoms associated with the separately rated radiculopathy of the left lower extremity may not be considered when evaluating the service-connected degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis. See 38 C.F.R. § 4.14. 3. An initial rating higher than 30 percent for radiculopathy of the left upper extremity. 4. An initial rating higher than 20 percent for radiculopathy of the left lower extremity. Service connection was established for radiculopathy of the left upper extremity and left lower extremity in the October 2009 rating decision that is the subject of this appeal. Initial 10 percent ratings were assigned effective February 26, 2009. The left upper extremity was rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515 and the left lower extremity was rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. The ratings were increased to 20 percent, also effective February 26, 2009, under Diagnostic Codes 8515 and 8510, respectively, in a January 2012 rating decision. The rating for the left upper extremity was subsequently increased to 30 percent, also effective February 26, 2009, under Diagnostic Code 8511, in an April 2018 rating decision. Since service connection was established for the left lower and upper extremity radiculopathy, the Veteran has reported that his left leg will go numb from the hip to the knee, that he had been noticeably losing strength in his left arm/hand, and that he had pain radiating into his left shoulder. He also reported that he had dropped items when trying to carry too much and testified to left lower extremity numbness, burning pain, and spasms. The Veteran's wife reported many of the same complaints. The Veteran's is right hand dominant, so his left upper extremity represents his minor extremity. Electromyograph and nerve conduction studies (EMG/NCV) were conducted in March 2009 and July 2009. The March 2009 EMG/NCV showed that monopolar sampling of the left lower extremity and lumbosacral paraspinal muscles showed chronic or old neurogenic changes at the L4-S1 myotome levels, which were interpreted as consistent with old or chronic L4-S1 radiculopathies; the left peroneal, posterior tibial, and sural nerves were within normal limits. The July 2009 EMG/NCV reported that motor conduction and F-wave latency studies of both median and left ulnar nerves showed prolonged left median peak latency; bilateral sensory conduction studies of the median, ulnar, and radial nerves showed prolonged left median nerve peak latency, with slow conduction velocity across the wrist segment as well; and monopolar sampling of the left upper extremities and shoulder (C5-T1) muscles showed chronic neurogenic changes at the C6-7 myotome levels. These electrophysiological studies of the upper extremities were interpreted as consistent with chronic left C6-7 radiculopathies with superimposed left carpal tunnel syndrome. The Veteran has undergone several VA examinations since service connection was established for the left lower and upper extremity radiculopathy. Examinations conducted in June 2009 and December 2010 did not identify specific nerves involved in either extremity. Peripheral Nerves Disability Benefits Questionnaires (DBQs) were conducted in March 2012 and January 2015. The March 2012 examination indicated that there was incomplete paralysis of moderate severity of the Veteran's upper, middle, and lower radicular nerve groups in the left upper extremity and incomplete paralysis of moderate severity of the Veteran's sciatic nerve in the left lower extremity. The January 2015 examination indicated that there was incomplete paralysis of mild severity of the Veteran's radial, medial, and ulnar nerves, incomplete paralysis of moderate severity of the Veteran's middle radicular group in the left upper extremity, and incomplete paralysis of moderate severity of the Veteran's sciatic nerve in the left lower extremity. VA examinations of the cervical spine conducted in December 2019 and October 2020 only reported that the left upper extremity upper radicular nerve group was affected, with the December 2019 VA examiner noting mild severity and the October 2020 VA examiner noting moderate severity. VA examinations of the thoracolumbar spine conducted in March 2018 and December 2019 reported left femoral and sciatic nerve involvement of moderate severity and left sciatic nerve involvement of moderate severity, respectively. The Board finds that Diagnostic Code 8513 provides the best criteria for evaluating the Veteran's left upper extremity radiculopathy because it contemplates impairment of all radicular groups and the March 2012 VA examination indicated that the upper, middle, and lower radicular groups were involved. See Butts, 5 Vet. App. at 538 (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The regulations describe complete paralysis for each radicular group. For the upper radicular group, complete paralysis is established where all shoulder and elbow movements are lost or severely affected, but hand and wrist movements are not affected. See 38 C.F.R. § 4.124a, Diagnostic Code 8510. For the middle radicular group, complete paralysis is established where adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist are lost or severely affected. See 38 C.F.R. § 4.124a, Diagnostic Code 8511. For the lower radicular group, complete paralysis is established where all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, are paralyzed (substantial loss of use of hand). See 38 C.F.R. § 4.124a, Diagnostic Code 8512. The term "incomplete paralysis" indicates a degree of lost or impaired function less than the type picture for complete paralysis given with each nerve. Under Diagnostic Code 8513, ratings of 20, 30, and 60 percent are assigned for incomplete paralysis of all radicular groups of the minor extremity that is mild, moderate or severe, respectively; an 80 percent rating is assigned for complete paralysis of the radicular nerve of the minor extremity. 38 C.F.R. § 4.124a. While this diagnostic code best describes the Veteran's left upper extremity radiculopathy, the preponderance of the evidence does not support the assignment of an initial rating higher than 30 percent under Diagnostic Code 8513 at any time during the appeal period since the severity of the incomplete paralysis affecting each left upper extremity radicular group has been reported as moderate by the majority of the VA examiners. See VA examination reports dated March 2012, January 2015, and October 2020. While the Board acknowledges that the December 2010 VA examiner indicated that the Veteran's left arm radiculopathy was moderately severe, the moderately severe evaluation level is only applicable for involvement of the sciatic nerve. 38 C.F.R. § 4.124a. The Board also acknowledges that the January 2015 peripheral nerves DBQ identified radial, medial, and ulnar nerve involvement in the left upper extremity. It finds, however, that separate ratings are not warranted based on the reported impairment of these nerves. As noted above, the note following 38 C.F.R. § 4.124a, Diagnostic Code 8719 provides that combined nerve injuries should be rated by reference to the major involvement. In this case, the record establishes the upper, middle, and lower radicular nerves as the major involvement. Notably, the January 2015 DBQ is the only finding of radial, medial, and ulnar nerve impairment and it assesses the impairment as mild, whereas the level of impairment affecting the middle radicular nerve was noted to be moderate. The Board finds that Diagnostic Code 8520 provides the best criteria for evaluating the Veteran's left lower extremity radiculopathy because it contemplates impairment of the sciatic nerve. Diagnostic Code 8521, which was used to support the assignment of the 20 percent rating, contemplates impairment of the external popliteal (common peroneal) nerve, which has not been identified in this case. While Diagnostic Code 8520 best describes the Veteran's left lower extremity radiculopathy, the preponderance of the evidence does not support the assignment of an initial rating higher than 20 percent under this diagnostic criteria at any time during the appeal period since the severity of the incomplete paralysis affecting the left lower extremity sciatic nerve has consistently been reported as moderate. See VA examinations dated March 2012, January 2015, March 2018, and December 2019. The Board acknowledges that the March 2018 VA examiner also indicated that there was left lower extremity femoral nerve involvement of moderate severity. A separate rating for moderate incomplete paralysis of the anterior crural (femoral) nerve, however, is not warranted under Diagnostic Code 8526, which provides ratings for complete or incomplete paralysis of the quadriceps extensor muscles. This determination is based on the fact that the March 2018 VA examination is the only reference to femoral nerve involvement in this case, the fact that there is no indication from VA or private treatment records that the Veteran has impairment of the quadriceps extensor muscles, and the fact that the December 2019 VA examiner did not indicate that the left femoral nerve was impaired. In sum, the preponderance of the evidence supports the currently assigned 30 percent rating for the Veteran's left upper extremity radiculopathy under Diagnostic Code 8513 and the currently assigned 20 percent rating for the Veteran's left lower extremity radiculopathy under Diagnostic Code 8520. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Other Considerations The Board has considered whether the Veteran's cervical spondylitis, degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis (from January 12, 2015), and/or radiculopathy of the left upper and lower extremities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). On December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321 (b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities. 82 Fed. Reg. 57830. The final rule went into effect January 8, 2018, and applies to all applications for benefits received by VA on or after January 8, 2018, or that are pending before VA, the Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on January 8, 2018. See also Thurlow v. Wilkie, 30 Vet. App. 231 (2018) (holding the revision to 38 C.F.R. § 3.321(b) eliminating extraschedular consideration based on the collective impact of multiple service-connected disabilities did not have an impermissible retroactive effect and applied to all cases pending before VA and the Court on the effective date of the final rule). As such, this decision can only consider whether the Veteran is entitled to an extraschedular evaluation for his service-connected cervical spondylitis, degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis (from January 12, 2015), radiculopathy of the left upper extremity, and/or radiculopathy of the left lower extremity when they are considered separately. The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020). The Joint Motion determined that the evidence of record indicated the Veteran had had issues with sleeping due to spinal disabilities and radiculopathy and that the Board did not conduct an adequate Thun step one discussion in its September 2017 decision to determine if the rating criteria applicable to the Veteran's disabilities reasonably describe his disability level and symptomatology as to sleep disturbance. With respect to the contention that the service-connected disabilities impact his ability to sleep, the Board notes the Veteran is service connected for a mood disorder. In this case, the Veteran's claimed sleep disturbance could be and/or is adequately evaluated under VA's General Rating Formula for Mental Disorders, which contemplates sleep disturbance. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; see also Long, 33 Vet. App. at 173-75 (holding that the Veteran's claimed symptoms of reduced self-esteem, social impairment, anxiety, and depression were not exceptional so as to warrant an extraschedular rating because they could be adequately evaluated under VA's General Rating Formula for Mental Disorders). Accordingly, an extraschedular rating based on sleep disturbance attributed to his spine and radiculopathy disabilities is not warranted as sleep disturbance is contemplated under the VA's General Rating Formula for Mental Disorders and he is already in receipt of a rating for a mood disorder under that Formula. Thus, referral of the claims for increased ratings for cervical spondylitis, degenerative changes of the lumbar spine with epiphysitis of the spine with dorsal kyphosis (from January 12, 2015), radiculopathy of the left upper extremity, and/or radiculopathy of the left lower extremity for extraschedular consideration is not warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.