Citation Nr: 22012494 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 16-46 862 DATE: March 4, 2022 ORDER Entitlement to a disability rating greater than 30 percent for a cervical spine disorder is denied. A separate 20 percent disability rating for the left upper extremity radiculopathy is granted, beginning September 23, 2020. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disorder is not manifested by unfavorable ankylosis of the entire spine. 2. The Veteran's radicular symptoms of his left upper extremity are more closely approximated by mild incomplete paralysis of the C5/C6 nerve roots. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a service-connected cervical disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.71a, Diagnostic Code 5242. 2. The criteria for a separate disability rating of 20 percent for radiculopathy, left upper extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Diagnostic Codes 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from August 1970 to August 1972 and with the Army from September 1990 to June 1991. The issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing in October 2018, before the undersigned Veterans Law Judge (VLJ), sitting at the Albuquerque, New Mexico RO. The record was held open for 30 days for the submission of additional evidence. A copy of the transcript is of record. The issues were remanded in May 2019 for the RO to obtain and associate with the claims file outstanding VA treatment and/or private treatment records from August 2016 to present, obtain a completed Form 21-8940 and employment verification forms, and VA examination with an appropriate clinician to determine the current severity of his cervical spine disorder. Outstanding treatment records and a completed VA Form 21-8940 were associated with the claims file. The VA examination of September 2020 was adequate for it addressed the severity of his neck disability and neurological complications therefrom, including radiculopathy. The Board finds that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a disability rating greater than 30 percent for DDD of the cervical spine is denied. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also to be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (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 the motion is limited, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 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."). The Veteran's cervical spine disability is currently rated at 30 percent under Diagnostic Code 5242. 38 C.F.R. § 4.71a. Diagnostic Code 5242 allows for a rating under either 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 results in the higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent evaluation is warranted when the forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine; or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Normal ROM of the cervical spine is flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees bilaterally, and rotation to 80 degrees bilaterally. Id. at Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). As of February 7, 2021, Diagnostic Code 5242 governs degenerative arthritis, degenerative disc disease other than Intervertebral Disc Syndrome (also, see either Diagnostic Code 5003 or 5010). Treatment notes show that the Veteran's complaints of neck pain during the appeal period. The Veteran testified at his October 2018 Board hearing that his current cervical disability causes "consistent" stinging and piercing pain. The neck pain functionally impacted his day-to-day life. For example, he wears only t-shirts that he can pull up because taking off and putting on other types of shirts caused a worsening of his neck pain. His cervical disability also inhibits his working on a computer for more than 10 minutes or watching tv in a straight line. He also testified that because he wears bifocal transitional lenses, looking up and down when driving or checking rearview and side mirrors also cause neck pain. The Veteran underwent a cervical conditions examination in December 2015. The Veteran reported chronic neck pain resulting from heavy activity during military service, which is continued since, resulting in constant stinging neck pain, worsened by flexion or extension, and pain with sleeping. The Veteran did not report flare-ups. He described his functional impairment as poor tolerance for computer work due to neck positioning. The examiner diagnosed degenerative arthritis in the cervical spine, C5/C6. The initial ROM revealed forward flexion ended at 35 degrees; extension ended at 35 degrees; right lateral flexion ended at 35 degrees; left lateral flexion ended at 35 degrees; right lateral rotation ended at 60 degrees; and left lateral rotation ended at 60 degrees. The ROM itself contributed to a functional loss with limitations in his ability to drive in traffic or communicate quickly in groups. Pain was noted on examination and caused functional loss in forward flexion, extension, right lateral rotation, and left lateral rotation. The Veteran was able to perform repetitive use testing with three repetitions. There was no additional loss of function or ROM after three repetitions. The Veteran was not examined after repeated use over time, but the examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain and fatigue were noted to significantly limit functional ability with repeated use over a period of time. The examiner noted that he was unable to describe in ROM because the Veteran reported increased pain with extended computer work or driving, which limited his ability to continue. The Veteran had no localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. The was no indication of pain with weight-bearing. The examiner noted no muscle spasm and guarding of the cervical spine. The examiner noted additional contributing factors of disability included less movement than normal. Muscle strength testing was active movement against some resistance, 4/5. The reflexes were normal, as was the sensory examination. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, nor did he have atrophy nor ankylosis. The examiner explained that the weakness was "consistent with general deconditioning and not indicative of radiculopathy." The examiner noted that the Veteran also did not have IVDS of the cervical spine, with no incapacitating episodes over the past 12 months. The Veteran did not use any assistive devices for his cervical disability. The Veteran's cervical spine disability impacted his ability to work. The examiner explained that there was limitations intolerance for driving, computer work, and limited his options for many jobs. The Veteran underwent a second cervical disorder examination in September 2020. The Veteran reported increased piercing pain, and immobility that had returned. He also reported that there was pain when looking at a mirror when driving and the need to adjust his pillow often when sleeping. He reported morning neck pain, the inability to sit, stand, or walk for more than 15 minutes, or lift more than 10 pounds. The Veteran reported functional loss or functional impairment with pain upon use or driving to work. He reported daily moderate to severe flare-ups of neck pain. The neck flare-ups lasted 4-5 hours and were precipitated by any movement, bending over, standing, sitting, and walking. The neck flare-ups were alleviated by laying down. The examiner diagnosed degenerative arthritis of the cervical spine and radiculopathy of the left upper extremity. The examiner noted that the Veteran was right hand dominant. The initial ROM revealed forward flexion ended at 20 degrees; extension ended at 30 degrees; right lateral flexion ended at 15 degrees; left lateral flexion ended at 20 degrees; right lateral rotation ended at 20 degrees; and left lateral rotation ended at 20 degrees. The ROM itself contributed to a functional loss with limitations with driving. Pain was noted on examination and caused functional loss with the forward flexion, extension, right lateral rotation, left lateral rotation, right lateral flexion, and left lateral rotation. The Veteran had localized tenderness or pain to palpation in the lateral neck. The severity was rated at seven out of 10. The examiner noted that the relationship to the condition was direct. There was pain on passive range of motion testing. There was pain with weight-bearing but not with non-weight-bearing. The Veteran was able to perform repetitive use testing with three repetitions. There was no additional loss of function or ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. In terms of ROM, the examiner estimated that after repetitive use over time, the forward flexion ended at 15 degrees; extension ended at 25 degrees; right lateral flexion ended at 10 degrees; left lateral flexion ended at 15 degrees; right lateral rotation ended at 15 degrees; and left lateral rotation ended at 15 degrees. The Veteran was not being examined during a flare-up. However, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. In terms of ROM, the examiner estimated that during a flare-up, forward flexion ended at 15 degrees; extension ended at 25 degrees; right lateral flexion ended at 10 degrees; left lateral flexion ended at 15 degrees; right lateral rotation ended at 15 degrees; and left lateral rotation ended at 15 degrees. The examiner noted no muscle spasm and guarding of the cervical spine. The Veteran had no additional contributing factors to the disability. Muscle strength testing was normal, 5/5, and the sensory examination was normal. His reflexes were hypoactive, 1+. Radiculopathy, symptoms of radiculopathy, and other neurological complications were noted. The Veteran had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremity with the involvement of the C5/C6 nerve roots. The severity of the radiculopathy was described as mild. He did not have radiculopathy symptoms in his right upper extremity. He did not have muscle atrophy nor ankylosis. The examiner noted that the Veteran did not have IVDS of the cervical spine. The Veteran did not use any assistive devices for his cervical disability. The Veteran's cervical spine disability impacted his ability to work. The Veteran reported pain with movement, driving, or working. Based on the evidence presented above, the Board finds that a rating higher than 30 percent is not warranted. The symptoms of the Veteran's cervical spine disability during the appeal period are not more closely approximated by the next higher rating, the 40 percent criteria. There is no probative medical or lay evidence supporting a finding that the Veteran has unfavorable ankylosis, to include the "functional equivalent" thereof, during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). Furthermore, unfavorable ankylosis is defined by regulation 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; the restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to the 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 for Diseases and Injuries of the Spine, Note (5). The Veteran does not have any of these factors, nor has he so asserted. A 40 percent rating is not warranted. The Board considers whether a separate evaluation may be warranted for any associated objective neurological abnormalities. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Here, the medical and lay evidence of record does not show erectile dysfunction or bowel/bladder conditions associated with a cervical spine disability. Additionally, the record does not show that he has radiculopathy or radiculopathy symptoms in his right upper extremity. Significantly, his right upper extremity was tested at two VA examinations and he was found to not have radiculopathy in his right upper extremity. He has not provided lay evidence describing right upper extremity radiculopathy. 2. A separate 20 percent disability rating for the left upper extremity radiculopathy is granted. The September 2020 VA examiner diagnosed left upper extremity radiculopathy and found that the C5/C6 nerve root (upper radicular group) was involved. Paralysis of the upper radicular group is evaluated in accordance with the criteria outlined in 38 C.F.R. § 4.124a, Diagnostic Code 8510. Under these criteria, mild incomplete paralysis (affecting both the major and minor arm) is rated as 20 percent disabling. Moderate incomplete paralysis is rated as 30 percent for the minor arm. Severe incomplete paralysis is rated as 40 percent for the minor arm. Complete paralysis, all shoulder, and elbow movements lost or severely affected, hand and wrist movements not affected is rated as 60 percent for the minor arm. 38 C.F.R. § 4.124a. The Veteran is right-handed. Therefore his left upper extremity is his minor arm. Regulations provide that ratings for peripheral neurological disorders are 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. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). The words "slight," 'moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminologies such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. During the September 2020 VA examination, the examiner determined that the Veteran had radicular symptoms involving the C5/C6 nerve root of the left side. The Veteran's symptoms included mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremity. He did not have constant pain. The overall severity of the radiculopathy was described as mild. The Board finds that a separate 20 percent rating for the Veteran's left upper extremity radiculopathy extremity is warranted under Diagnostic Code 8510. A higher rating is not warranted. At no time during the appeal period has the medical or lay evidence noted the Veteran's radiculopathy to be moderate in severity. None of his individual symptoms were described as more than mild, and he did not have constant pain. His sensation to light touch was normal, as opposed to decreased or absent for the shoulder area (C5), inner and outer forearm (C6-T1), and hand/fingers (C6-8). The examiner stated that he did not have any other signs or symptoms of radiculopathy. This disability picture is best described as mild. To be moderate, it is reasonable to conclude that at least one of his symptoms be described as moderate, or that his sensory examination show decreased sensation due to the nerve roots involved. Accordingly, beginning September 23, 2020, a 20 percent for mild radiculopathy affecting the left upper extremity is granted. 38 C.F.R. § 4.124a, Diagnostic Code 8510. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. September 23, 2020 is the date of the VA examination. However, the information contained in the examination report does not allow the Board to factually ascertain when the left upper extremity radiculopathy began. Additionally, other information in the claims file does not document its onset. The Veteran did not report radiculopathy symptoms at his hearing in October 2018. His medical treatment records note a diagnosis of lumbar radiculopathy but do not address left upper extremity radiculopathy, though they contain many reviews of systems where he denied numbness and tingling in his extremities and none where he reported left upper extremity symptoms. Because an earlier date is not factually ascertainable, September 23, 2020 is the appropriate effective date for the 20 percent rating. REASONS FOR REMAND Entitlement to a TDIU is remanded. Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). These criteria are met beginning March 22, 2016. The Veteran submitted VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in November 2019 and attributed his lack of gainful employment to his cervical and lumbar spine disabilities. He also reported that his cervical and lumbar spine disabilities affected his full-time employment in February 2007, which was also the date he became too disabled to work. He indicated working part-time at Home Depot, with a gross income of $320.00 to $618.00 monthly, with a total of $16,874.00 within the past 12 months. The Veteran reported that he had not tried to obtain employment since he became too disabled to work. He indicated a master's degree in Education and not having had any other education and training before and since he became too disabled to work. During the VA examination of December 2015 and September 2020, the examiners found the Veteran's cervical disability affected his ability to work. Additionally, of record are May 2015, December 2015, and June 2016 back examinations finding that the Veteran's back disability impacted his ability to work. The May 2015 examiner noted a moderate to severe effect on physical employment and mild effect on sedentary employment. The December 2015 examiner noted that the ROM loss was highly probable considering his diagnosis. The June 2016 examiner noted marked restriction in motion compromised any physical work requiring lifting, carrying, prolonged standing. While the medical and lay evidence support a grant of a TDIU, the Veteran's income during the appeal period surpassed the poverty threshold established by the U.S. Census Bureau for at least the years of 2018-2019. In his November 2019 VA Form 21-8940, the Veteran reported earned gross income from his part-time job at Home Depot, between $320.00 to $618.00 monthly, with a total of $16,874 within the past 12 months. The poverty threshold for one person in 2019 was $13,011, and for 2018 it was $12,784. He has not asserted that any special accommodations were made for him at his job, or that his employer engaged in any behavior such as reducing his responsibilities, protecting him from consequences of poor performance, or hiring him only due to altruism. The evidence does not currently show that his part time job at Home Depot is a protected work environment. For purposes of a TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); Faust v. West, 13 Vet. App. 342, 355-56 (2000) ("substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history). As the Veteran's part-time income at various times during the appeal period seems to exceed the poverty threshold established by the U.S. Census Bureau, a remand is warranted for additional development to determine when the Veteran's employment has been only marginal. Additionally, for the portion of the appeal period prior to March 22, 2016, the schedular criteria for a TDIU were not met, and referral to the Director of the Compensation Service is needed. Accordingly, the matter is REMANDED for the following action: 1. First, ask the Veteran to submit evidence relating to the income derived from his part-time employment throughout the appeal period: 2015 thorough 2021. This could include Federal or state tax returns if he so chooses, or W-2 forms, or earnings statements from the Social Security Administration for the years of 2015 to 2021. 2. For the portion of the appeal period prior to March 22, 2016, refer the claim to the Director of the Compensation Service for consideration of an extraschedular TDIU. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.