Citation Nr: 22005668
Decision Date: 02/02/22	Archive Date: 02/02/22

DOCKET NO. 11-14 033
DATE: February 2, 2022

ORDER

An initial disability rating in excess of 30 percent for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion is denied.

An initial disability rating of 30 percent, but no higher, for the service-connected right upper extremity radiculopathy is granted.

Entitlement to an effective date of November 29, 2010 for the service-connected left upper extremity radiculopathy is granted.

A disability rating in excess of 20 percent for the service-connected left upper extremity radiculopathy for the period on appeal from October 31, 2014 is denied.

An initial disability rating in excess of 10 percent for the service-connected neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion is denied.

FINDINGS OF FACT

1. During the entire period on appeal, the cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion has not been manifested by symptoms more closely approximating unfavorable ankylosis of the cervical spine or entire spine, or functional equivalent thereof.

2. From March 24, 2021, the right upper extremity radiculopathy has been manifested by symptoms more closely approximating moderate, but not severe, incomplete paralysis.

3. Resolving any reasonable doubt in the Veteran's favor, left upper extremity radiculopathy was manifest November 29, 2010.

4. From November 29, 2010, the left upper extremity radiculopathy has been manifested by symptoms approximating moderate, but not severe, incomplete paralysis.

5. From March 24, 2021, the neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion was not manifested by symptoms more closely approximating a painful and unstable scar, two painful and/or unstable scars, or any characteristics of disfigurement.

CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 30 percent for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243.

2. The criteria for an initial disability rating of 30 percent, but no higher, for the service-connected right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8610.

3. The criteria for an effective date of November 29, 2010 for the service-connected left upper extremity radiculopathy have been met 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8610.

4.  The criteria for a disability rating in excess of 20 percent for the service-connected left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8610.

5. The criteria for an initial disability rating in excess of 10 percent for neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1995 to January 1997 and from March 1998 to July 2008.

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion and assigned an initial disability rating of 10 percent, effective August 1, 2008.

In November 2014, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that testimony is associated with the claims file. The Board informed the Veteran that the VLJ who had conducted the November 2014 hearing was no longer at the Board and informed the Veteran of his right to another Board hearing. The Veteran did not respond within 30 days of the letter. See October 2018 correspondence.

Following a February 2015 Board remand, an October 2015 rating decision, increased the disability rating for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion from 10 percent to 30 percent, effective October 31, 2014, and assigned a separate disability rating of 20 percent for left upper extremity radiculopathy, also effective October 31, 2014.

In a January 2017 decision, the Board denied the Veteran's claims for increased ratings for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion and associated left upper extremity radiculopathy. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a June 2018 Memorandum Decision, the Court vacated the Board's January 2017 decision and remanded the case for further development in compliance with the directives specified in the decision.

In April 2019 and February 2021, the Board remanded the case back to the RO for additional development.

In an April 2021 rating decision, the RO assigned an effective date of August 1, 2008 for the grant of a disability rating of 30 percent for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion. The RO also assigned a separate 20 percent disability rating for right upper extremity radiculopathy, effective March 24, 2021, and a separate 10 percent disability rating for a neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion.

In July 2021, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

In a November 2021 Supplemental Statement of the Case (SSOC), the RO included the issues of increased rating for the service-connected right upper extremity radiculopathy and neck scar as part and parcel of the cervical increased rating claim on appeal.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). 

When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." 

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion.

The Veteran's service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  The hyphenated codes for the Veteran's cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion reflect that degenerative arthritis, degenerative disc disease is the service-connected disability under Diagnostic Code 5242 and intervertebral disc syndrome (IVDS) is the basis of the rating assigned under Diagnostic Code 5243.

Disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, IVDS, under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. 

Under the General Rating Formula, a 10 percent rating 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. Id. 

Note (5) to the General Rating Formula defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

The Court has recently held that, when rating diseases and injuries of the spine under the General Rating Formula, evidence of the functional equivalent of ankylosis can satisfy the criteria for a rating based on ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021); see also 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. at Note 1.

Diagnostic Code 5243 specifically instructs to evaluate IVDS under both Diagnostic Code 5243 and the General Rating Formula and apply whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

Effective February 7, 2021, Diagnostic Code 5243 instructs assignment of a rating under its provisions only when there is disc herniation and/or irritation of the adjacent nerve root and to apply Diagnostic Code 5242 for all other disc diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective February 7, 2021).

The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the amended regulation cannot be applied prior to the effective date unless the regulation explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). Here, the amendments to the rating schedule do not have any retroactive application. However, given that the pre-amendment criteria do not require evidence of disc herniation and/or irritation of the adjacent nerve root, the IVDS Formula may still be applied to rate the cervical disability because the pre-amendment criteria had no such requirement.

Upon VA examination in May 2009, forward flexion was to 40 degrees and extension to 25 degrees. Left and right lateral flexion was both to 75 degrees and left and right lateral rotation were both to 40 degrees. Passive motion was the same. Combined range of motion of the cervical spine was 295 degrees. Repetitive motion did not change his range of motion or his symptoms. There was evidence of spasm but not severe enough to be responsible for abnormal gait or spinal contour. Despite complaints of pain on examination, flexion was still possible to 40 degrees and extension to 25 degrees. There was no additional functional loss on repetitive testing. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca, 8 Vet. App. at 206-7. There was no evidence of lack of endurance, fatigue, weakness or incoordination of the spine due to the service-connected cervical spine disability. Id. 

Upon VA examination in July 2015 despite complaints of pain, forward flexion was to 15 degrees; extension was improved to 35 degrees; right lateral flexion was to 25 degrees; left lateral flexion was to 25 degrees; right lateral rotation was to 80 degrees and left lateral rotation was to 55 degrees. There was no evidence of weakness, excess fatigability or incoordination. The Veteran was able to perform repetitive testing without a change in range of motion. The examiner indicated that he was unable to say without resorting to mere speculation if pain, weakness, fatigability, or incoordination with repeated use over time or during flare-ups would limit functional ability because it was variable with repetitive use in real life. There was evidence of spasm but not severe enough to be responsible for abnormal gait or spinal contour. There was no guarding.

In January 2020, a retrospective opinion regarding the July 2015 examination was obtained. The January 2020 VA examiner stated that the Veteran's reported symptomology and current physical examination were consistent with examiner's remarks dated July 2015, and that it was reasonable to opine that the Veteran's worsening symptoms were a continuation of those reported in July 2015. Upon examination, range of motion testing revealed forward flexion to 35 degrees and extension to 15 degrees. The examiner determined there would be no further loss in range of motion following repeated use or during a flare-up.

During September 2020 VA treatment, the Veteran reported neck pain within the last six months, but denied taking any medication.

Upon examination in March 2021, range of motion testing revealed forward flexion to 35 degrees and extension to 15 degrees. The Veteran reported that during a flare-up, he was unable to move his neck.

Another VA opinion was obtained in November 2021. Upon examination, range of motion testing revealed forward flexion to 35 degrees and extension to 15 degrees. The Veteran also reported that his neck pain had not interfered with his fulltime employment as an attorney. The November 2021 examiner also reviewed the May 2009 examination and provided the following estimates of where pain began to worsen: (1) flexion at 28 degrees; (2) extension at 10 degrees; (3) right lateral flexion at 5 degrees; (4) left lateral flexion at 10 degrees; (5) right rotation at 10 degrees; and (6) left rotation at 12 degrees. Next, the examiner opined that the Veteran's functional impairment at the time of the May 2009 examination would include an "increase in intradiscal pressure and segmental motion in the superior adjacent C4-5 during physiological motion." Furthermore, the examiner indicated that the "increased pressure and hypermobility might accelerate normal degenerative changes in the vertebral levels adjacent to the anterior cervical fusion" and noted that the range of motion "demonstrated by the Veteran is consistent with medical literature findings." 

VA treatment records reflect periodic reports of neck pain, but no probative evidence indicating that neck pain has interfered with the Veteran's full time employment or caused ankylosis. 

As noted in the Introduction, the Veteran is now in receipt of a 30 percent initial disability rating for the service-connected cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion for the entire period on appeal, or from August 1, 2008. Higher ratings require unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire spine, or the functional equivalent thereof.

However, no examiner during the period on appeal has provided a diagnosis of favorable or unfavorable ankylosis. Similarly, neither VA nor private treatment records contain any evidence of ankylosis.

Notably, a March 2021 VA examiner for the cervical spine, based on the Veteran's statements that he could not "significantly move" his head or neck during flare-ups, estimated that cervical ROM would decrease to 0 degrees in all directions during flare-ups. This finding is consistent with the functional equivalent of favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, note (5); see also Chavis, 34 Vet. App. at 1.

Nonetheless, VA examinations from January 2020, and November 2021 indicated that at least some cervical forward flexion and extension would be retained even following repeated use over time and during flare-ups. The November 2021 examiner estimated that no less 5 degrees of forward flexion and extension would remain during flare-ups and following repeated use over time; the January 2020 examiner estimated that 35 degrees of forward flexion and 15 degrees of extension would be retained. The findings of the January 2020 and November 2021 examiners outweigh the finding of the March 2021 examiner.

Furthermore, even assuming arguendo that the Veteran's cervical impairment approximates favorable ankylosis, there is no evidence that the impairment has more closely approximated unfavorable ankylosis at any time during the period on appeal. Specifically, there is no evidence of any of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula, note (5).

The Veteran does not have a diagnosis of IVDS. In this regard, no VA examiner during the period on appeal has provided a diagnosis of IVDS. Accordingly, Diagnostic Code 5243 is not applicable.

Given the above, the preponderance of the evidence shows that the Veteran's cervical symptoms have not more closely approximated unfavorable ankylosis of the entire cervical spine or entire spine at any time during the period on appeal. Accordingly, the criteria for an initial disability rating in excess of 30 percent for the cervical spine limitation of motion status post cervical anterior fusion of C5-6 and discectomy for C6-C7 disc protrusion have not been met.

2. Entitlement to an initial disability rating in excess of 20 percent for the service-connected right upper extremity radiculopathy.

3. Entitlement to an initial disability rating in excess of 20 percent for the service-connected left upper extremity radiculopathy.

The Veteran's service-connected right and left upper extremity radiculopathy disabilities are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8610. As noted in the Introduction, the rating for right upper extremity radiculopathy is currently rated as 20 percent disabling, effective March 24, 2021 and the left upper extremity radiculopathy is currently rated as 20 percent disabling, effective October 31, 2014.

Under Diagnostic Code 8610, mild incomplete paralysis for the major and minor arms warrants a 10 percent rating. Moderate incomplete paralysis warrants a 30 percent rating for the major arm and a 20 percent disability rating for the minor arm. Severe incomplete paralysis warrants a 50 percent rating for the major arm and a 40 percent disability rating for the minor arm. Complete paralysis with adduction, abduction and rotation of arm, flexion of elbow, and extension of arm lost or severely affected warrants a 70 percent disability rating for the major arm and a 60 percent disability rating for the minor arm.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. Under the applicable regulation, where involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

Initially, the Veteran's right arm is the dominant upper extremity. See November 2021 VA examination report.

From March 24, 2021, the initial effective date for the separate rating for right upper extremity radiculopathy, the VA examinations of record indicate that the Veteran's right and left upper extremity radiculopathy have been manifested by substantially similar symptoms. In this regard, VA examinations dated March and November 2021 indicate that the Veteran's right and left upper extremity radiculopathy resulted in moderate intermittent pain and mild numbness in both upper extremities. Furthermore, sensory testing during the examinations revealed decreased sensation in the inner/outer forearms and hands/fingers of both the right and left upper extremities.

In light of the above, an initial disability rating of 30 percent for the service-connected right upper extremity radiculopathy is warranted. Specifically, the Veteran's right upper extremity radiculopathy more closely approximates moderate incomplete paralysis. Notably, as previously stated, symptoms in the left upper extremity, currently evaluated as approximating moderate incomplete paralysis, are substantially similar to symptoms in the right upper extremity. Accordingly, the criteria for an initial disability rating of 30 percent for the right upper extremity radiculopathy have been met.

An initial disability rating in excess of 30 percent for the service-connected right upper extremity radiculopathy is not warranted. In this regard, the radicular symptoms in the right upper extremity do not more closely approximate severe incomplete paralysis. Significantly, neither the March nor November 2021 examiners noted the presence of severe pain, paresthesias/dysthymias, or numbness. Furthermore, given that the Veteran's right upper extremity radiculopathy is wholly sensory, it may be rated as no greater than moderate incomplete paralysis. 38 C.F.R. § 4.124a. The March and November 2021 VA examinations revealed no deficits to muscle strength of deep tendon reflexes (DTRs). Accordingly, an initial disability rating in excess of 30 percent for the right upper extremity radiculopathy have not been met.

The Board notes that the Veteran denied radicular symptoms prior to the March 2021 VA examinations. VA and private treatment records similarly provide evidence of right upper extremity radicular symptoms prior to March 24, 2021. Finally, the lay statements of record also provide no such evidence of right upper extremity radiculopathy prior to March 24, 2021. Accordingly, the Veteran is not entitled to a disability rating for right upper extremity radiculopathy prior to March 24, 2021.

Turning to the left upper extremity radiculopathy, in addition to the March and November 2021 examinations described above, the Veteran received VA examinations to evaluate his left upper extremity radiculopathy in July 2015 and January 2020. However, prior to the July 2015 examination, during the October 2014 Board hearing the Veteran reported pain and tingling radiating down his left arm into two of his fingers. See October 2014 Board hearing transcript.

During the July 2015 VA examination, the Veteran reported radicular symptoms, "including pain in [the] left finger which can be relieved with certain movements of his neck." The examiner noted mild intermittent radicular pain in the left upper extremity, but no other radicular symptoms.

During the January 2020 VA examination, the Veteran reported "intermittent, sharp" radicular pain travelling through the left arm to the fingers. The examiner found that the left upper extremity radiculopathy was manifested by moderate intermittent pain but no other symptoms. None of the examinations of record noted the presence of severe pain, paresthesias/dysthymias, or numbness

Based on the foregoing, from October 31, 2014, a disability rating in excess of 20 percent for the service-connected left upper extremity radiculopathy is not warranted. Specifically, the left upper extremity radiculopathy has not been manifested by symptoms more closely approximating severe incomplete paralysis. As with the right upper extremity, the Veteran's left upper extremity symptoms are wholly sensory. There is no documentation of deficits to muscle strength or DTRs. Finally, the Veteran's statements during the October 2014 Board hearing, regarding intermittent pain and numbness in the left arm and fingers, are consistent with no more than moderate impairment. Given the above, from October 31, 2014, the criteria for a disability rating in excess of 20 percent for the left upper extremity radiculopathy have not been met.

4. Entitlement to an effective date prior to October 31, 2014 for left upper extremity radiculopathy 

The Veteran was granted service connection for left upper extremity radiculopathy, effective October 31, 2014. Based on more detail below, the Board finds that the Veteran is entitled to an earlier effective date. 

Private treatment records indicate that the Veteran reported radicular symptoms in the left upper extremity as early as November 2010. Specifically, during a November 2010 appointment, the Veteran reported "diffuse [upper extremity] pain which is brief and sharp; numbness in the left [upper extremity] in 3rd-5th digits which comes and goes intermittently." Progress note dated November 29, 2010. Similarly, a March 2011 record shows that the Veteran reported tingling in the left 3rd through 5th fingers on the left side and radiation of pain to the left triceps. Progress note dated March 14, 2011.

Given the above, the Board finds that the Veteran is entitled to an effective date of November 29, 2010 for left upper extremity radiculopathy. Notably, the Veteran's symptoms during November 2010 private treatment are substantially consistent with symptoms shown during the July 2015, January 2020, March 2021, and November 2021 VA examinations. 

There was no evidence of cervical radiculopathy during the May 2009 VA cervical spine examination and VA and private treatment records similarly provide no evidence of left radicular symptoms prior to November 29, 2010.

Accordingly, the criteria for an effective date of November 29, 2010 for the service-connected left upper extremity radiculopathy have been met.

5. Entitlement to an initial disability rating in excess of 10 percent for the service-connected neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion.

The Veteran's service-connected neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7804.

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. 

Note (1) of Diagnostic Code 7804 indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Note (2) indicates that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.

Note (3) indicates that Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.

Alternatively, scars of the head, face, or neck may be rated under 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, a scar of the head, face, or neck with one characteristic of disfigurement is rated as 10 percent disabling.

A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.

A 50 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement.

An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800.

The 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118, Diagnostic Code 7800, are: (1) scar 5 or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches 39 square centimeters); (6) skin texture abnormal (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. at Note (1).

In this case, the Veteran did not report that his neck scar was painful until a March 2021 VA examination. In this regard, the Veteran reported "intermittent symptoms of itch and an aching pain at site of surgical scar ... occurring with both rest and exertion." He reported no other symptoms associated with the scar. An attached scar disability benefits questionnaire indicates that the Veteran had a single scar on his neck. The scar was painful, but not unstable. The scar measured 4 centimeters in length and .3 centimeters in width for an area of 1.2 square centimeters. Finally, there were hyperpigmented areas covering the 1.2 square centimeter area of the scar.

Based on the foregoing, an initial disability rating in excess of 10 percent for the service-connected neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion is not warranted. With regard to 38 C.F.R. § 4.118, 7804, Diagnostic Code the Veteran's single neck scar is painful but not unstable, and as such, the 20 percent rating criteria are not more closely approximated. Additionally, regarding Diagnostic Code 7800, the Veteran's neck scar is not manifested by any characteristics of disfigurement. Notably, the hyperpigmentation associated with the scar covers far less than the required 39 square centimeters. Accordingly, the criteria for a 20 percent initial disability rating for the connected neck scar status post cervical anterior fusion of C5-6 and discectomy for C6-C7 protrusion have not been met under either Diagnostic Code 7804 or 7800.

Finally, the Veteran did not report that the neck scar was painful until March 24, 2021. VA examinations dated May 2009, July 2015, January 2020 indicate that the neck scar was not painful. Accordingly, no separate rating prior to March 24, 2021 for the neck scar is warranted.

 

 

Trina Fitzgerald

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.