Citation Nr: 22010770 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-48 021A DATE: February 24, 2022 ORDER For the appeal period prior to February 10, 2020, a 20 percent rating, but no higher, for the cervical spine disability, is granted. For the appeal period beginning February 10, 2020, a rating in excess of 20 percent for the cervical spine disability is denied. REMANDED Entitlement to a separate compensable rating for a neurological impairment of the right upper extremity associated with service-connected cervical spine disability is remanded. FINDING OF FACT For the entire rating period on appeal (both prior to and beginning February 10, 2020), the Veteran's cervical spine disability more nearly approximated forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, to include with repeated use over time, or favorable or unfavorable ankylosis. CONCLUSIONS OF LAW 1. For the appeal period prior to February 10, 2020, the criteria for a 20 percent rating, but no higher, for the cervical spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5242-5243. 2. Beginning February 10, 2020, the criteria for a rating in excess of 20 percent for the cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1983 to August 1983, July 1985 to August 1991, and June 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the procedural history of this case was previously addressed in the September 2021 Board decision. That procedural history is incorporated herein by reference. In September 2021, the Board remanded the claim on appeal for further development. Additionally, the claim for entitlement to a total disability rating based on individual employability (TDIU) was also remanded as it was found to be inextricably intertwined with the increased rating claim for the cervical spine disability. Thereafter, in a November 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted a TDIU based on the Veteran's service-connected disabilities, effective January 1, 2021, the first day following the Veteran's last date of employment. See May 2021 VA Form 21-4192. As this was a full grant of benefit sought, the issue of entitlement to a TDIU is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Further, the AOJ granted service connection for left upper extremity radiculopathy in a July 2020 rating decision. In October 2020, the Veteran requested higher-level review of the decision pertaining to both the rating and effective date assigned for the service-connected left upper extremity radiculopathy disability. A February 2021 rating decision granted an earlier effective date of October 10, 2016 for left upper extremity radiculopathy. The Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) in April 2021 and requested a hearing with a Veterans Law Judge. Notably, this matter has been separately docketed as an Appeals Modernization Act (AMA) appeal and will be addressed in a separate Board determination. Disability Ratings Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the 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 it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Cervical Spine Disability The Veteran is currently in receipt of a 10 percent rating for his cervical spine disability for the rating period prior to February 10, 2020, and is in receipt of a 20 percent rating for the period thereafter. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. DCs 5235-5243 are included under the General Rating Formula. Under DC 5242 (degenerative arthritis of the spine), a 10 percent disability rating is assigned when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or a combined range of motion of the cervical spine greater than 170 but no greater than 335; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent disability rating is for assignment when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a 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 disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. 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; 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a ). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000 ; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a , DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign DC 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Upon review of the evidence of record, the Board finds that the Veteran's cervical spine disability more nearly approximates the criteria for a 20 percent rating, but no higher, for the entire rating period on appeal. The Veteran has undergone various VA cervical spine examinations throughout the rating period, including examinations conducted in November 2014, February 2020, and April 2021. As discussed in the Board's September 2021 remand, the 2020 and 2021 VA examination reports did not satisfy the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, these examinations lack probative value as to the severity of the Veteran's cervical spine disability, to include during flare-ups and on repeated use, was not adequately addressed. The Board also finds that the November 2014 VA examination lacks probative value in that the examiner did not adequately consider the Veteran's symptoms and functional impairment during repeated use over time. During the evaluation, the Veteran specifically indicated that lifting overhead and repetitive twisting of the neck caused increased pain and stiffness. Despite these reports by the Veteran, the examiner did not provide an estimate as to range of motion of the cervical spine during episodes of lifting overhead and/or repetitive twisting of the neck. Pursuant to the Board's September 2021 remand, the Veteran was afforded another VA cervical spine examination in November 2021, which the Board finds to be adequate and highly probative as to the severity of the Veteran's disability throughout the rating period on appeal. In this regard, the Veteran described his symptoms since his onset date (2004-2005) and provided details as to the progression of his cervical spine pain, including achiness and numbness in the hands. Upon examination, the November 2021 VA examiner indicated that, at worst, the Veteran's cervical spine would be limited to 25 degrees in flexion with repetitive use over time. Based upon review of all the competent and probative evidence, the Board finds that the evidence is in relative equipoise as to whether a 20 percent rating is warranted for the cervical spine disability for the entire rating period on appeal. As noted above, the Board has found the November 2021 VA examination to be the most probative evaluation of record as it adequately addressed the Veteran's symptoms with repetitive use testing and repeated use over time. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees. As the Veteran's range of motion with repeated use over time has been limited to 25 degrees, and upon consideration of DeLuca and the provisions 38 C.F.R. §§ 4.40, 4.45, the Board will resolve reasonable doubt in the Veteran's favor and find that a 20 percent rating is more nearly approximated. The Board further finds that the Veteran's cervical spine symptoms have remained relatively consistent throughout the rating period; as such, the 20 percent rating is granted for the entire rating period on appeal. The Board further finds that a rating in excess of 20 percent is not warranted for the entire rating period on appeal. The evidence does not demonstrate forward flexion of the cervical spine to 15 degrees or less or unfavorable ankylosis of the cervical spine as required for a 30 or 40 percent disability rating. 38 C.F.R. § 4.71a. The Board has also considered the Veteran's reported impairment of function, such as neck pain and difficulty twisting his head and lifting overhead, and has considered additional limitations of motion due to pain. Indeed, as discussed above, these factors have been applied in awarding the next higher 20 percent rating. As such, the additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), do not provide a basis the assignment of an even higher rating. A higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is also not warranted as the Veteran has not been found to have been prescribed bed rest due to his cervical spine disability. See e.g., November 2014, February 2020, April 2021, and November 2021 VA examination reports. For these reasons, the Board finds that, for the appeal period prior to February 10, 2020, a 20 percent rating, but no higher, for the cervical spine disability, is warranted. For the appeal period beginning February 10, 2020, a rating in excess of 20 percent for the cervical spine disability, is denied. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. As for neurological abnormalities associated with the cervical spine disability, the Veteran has already been granted a 20 percent rating for left upper extremity radiculopathy. As discussed above in the introduction section, this matter (to include whether a higher rating is warranted) has been separately docketed as an AMA appeal and will be addressed in a separate Board determination. REASONS FOR REMAND Associated Neurological Impairment of the Right Upper Extremity As it pertains to the right upper extremity, the Board finds that a remand is required to clarify the diagnosis and severity of the Veteran's right upper extremity symptoms. According to an October 2017 VA neurosurgery note, the Veteran reported pain starting in his neck and radiating down the left shoulder. Over the past month, he also reported experiencing pain "going down the right side of his neck and shoulder." Some numbness in the pinky and ring fingers were also noted on the right, as well as intermittent paresthesias of the index finger on the rights. The VA neurosurgeon specifically indicated that some of the Veteran's symptoms (such as neck pain radiating to the shoulder) were "referrable to his cervical disc disease," while other symptoms were more consistent with ulnar neuropathy. During the April 2021 VA examination, the examiner indicated that a cervical spine MRI did not corroborate the radiculopathy. The Veteran's symptoms were noted to correspond to a peripheral neuropathy, but not due to the cervical spine. The etiology of the Veteran's hand numbness was noted to be "not clear." The Veteran was also afforded a VA peripheral nerves examination in February 2020. At that time, the VA examiner diagnosed the Veteran with left upper extremity radiculopathy, but none on the right. See also February 2020 VA cervical spine examination report (diagnosing left upper extremity radiculopathy). During the most recent November 2021 VA cervical spine examination report, the Veteran specifically reported having "numbness bilateral hands," however, the examiner did not diagnose the Veteran with radiculopathy and did address the Veteran's symptoms. On remand, the Veteran should be afforded a clarifying nerves examination to assist VA in determining the nature and severity of his right upper extremity symptoms. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA neurological examination to determine if he has radiculopathy of the right upper extremity related to the service-connected cervical spine disability and, if so, to determine the current level of severity of the disability and the onset date of the disability. **The examiner should address the October 2017 VA neurosurgery note, where the Veteran reported that, over the past month, he experienced pain "going down the right side of his neck and shoulder." Some numbness in the pinky and ring fingers were also noted on the right, as well as intermittent paresthesias of the index finger on the rights. The VA neurosurgeon specifically indicated that some of the Veteran's symptoms (such as neck pain radiating to the shoulder) were "referrable to his cervical disc disease," while other symptoms were more consistent with ulnar neuropathy. (a.) If a diagnosis is provided for the right upper extremity, the examiner should provide an opinion as to the specific nerve(s) and nerve group(s) impacted by the service-connected radiculopathy of the right upper extremity. (b.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Then, readjudicate the claim on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.