Citation Nr: 22013464 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-21 549 DATE: March 9, 2022 ORDER Entitlement to an initial compensable rating for a neck disability from August 25, 2015 to December 5, 2016, and a rating higher than 30 percent thereafter is denied. Entitlement to a disability rating higher than 10 percent for a back disability prior to December 5, 2016, and a rating higher than 20 percent thereafter is denied. The claim for entitlement to an earlier effective date than August 25, 2015, for the grant of service connection of right upper extremity radiculopathy is dismissed. The claim for entitlement to an earlier effective date than August 25, 2015, for the grant of service connection of left upper extremity radiculopathy is dismissed. FINDINGS OF FACT 1. Following a September 2017 development letter to the Veteran, VA received notice that he had failed to appear for VA examinations scheduled in connection with the claims on appeal. 2. The Veteran has not submitted evidence of good cause for his failure to report for September 2017 VA examinations. 3. From August 25, 2015 to December 5, 2016, there is no objective evidence of actual limitation of motion of the cervical spine or objective evidence demonstrating swelling, muscle spasm or painful motion that would cause limitation of motion. 4. From December 5, 2016, the Veteran's cervical spine disability is not manifested by unfavorable ankylosis of the entire cervical spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks. 5. Prior to the promulgation of a final decision by the Board, the appellant withdrew the appeal for entitlement to an earlier effective date than August 25, 2015, for the grant of service connection for right and left upper extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a neck disability from August 25, 2015 to December 5, 2016, and a rating higher than 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. 2. Because there is no reason or justification for failing to report for that necessary VA compensation examination, the claim for a rating higher than 10 percent for a back disability prior to December 5, 2016, and a rating higher than 20 percent thereafter, must be summarily denied. 38 C.F.R. § 3.655. 3. The criteria for withdrawal of the claim of entitlement to an earlier effective date than August 25, 2015, for the grant of service connection for right upper extremity radiculopathy by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to an earlier effective date than August 25, 2015, for the grant of service connection for left upper extremity radiculopathy by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1996 to March 2007, and from September 2008 to October 2013. An April 2017 rating decision increased the Veteran's disability rating for his neck disability to 30 percent, effective December 5, 2016. Because the increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In his April 2017 substantive appeal, the Veteran requested a videoconference hearing before a member of the Board. He withdrew this request for a hearing in February 2020. Therefore, the Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702 (e); 20.704(e). Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability 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. 1. Entitlement to a disability rating higher than 10 percent for a back disability prior to December 5, 2016, and a rating higher than 20 percent thereafter Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. 38 C.F.R. § 3.655(b) provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, "the claim shall be denied." A claim for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655 (b). See Turk v. Peake, 21 Vet. App. 565, 570 (2008). In September 2017 the Agency of Original Jurisdiction (AOJ) sent the Veteran letter informing the Veteran that an examination/s had been requested through a private medical facility in order to determine the current level of his disabilities in accordance with the Correia factors. Correia v. McDonald, 28 Vet. App. 158 (2016). The letter also explained that when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record or even denied. The AOJ received notification that the Veteran failed to report to the examination scheduled for September 2017. There is no documentation in the claims file that the Veteran contacted VA regarding the missed examinations. A September 2017 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed without good cause to report for the scheduled VA examination, and also provided notice of the provisions of 38 C.F.R. § 3.655 (b). The current claim for increased rating for a back disability is not an original compensation claim but is, instead, a claim for increase. With respect to the increased rating claim, the September 2017 VA examination was necessary to evaluate the Veteran's assertion that higher disability ratings were warranted and to determine the current level of severity of the service-connected back disability. The Veteran failed to report, without good cause, for the scheduled VA examination/s in conjunction with the increased rating claim. As such, the criteria for a denial based on the application of 38 C.F.R. § 3.655 have been met regarding the claim for increased evaluations for service-connected back disability. The use of the word "shall" in 38 C.F.R. § 3.655 (b) leaves no discretion in this matter. Based on the foregoing, the claim for increased ratings for the back disability must be denied. 38 C.F.R. § 3.655; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the appeal for entitlement to increased ratings for the back disability is denied. 2. Entitlement to an initial compensable rating for a neck disability prior to December 5, 2016, and a rating higher than 30 percent thereafter The Veteran seeks higher disability ratings than those currently assigned for his neck disability. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If 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. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A higher 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. As noted above, the AOJ scheduled the Veteran for a VA examination in compliance with the holding in Correia and Sharp, but the Veteran failed to report without good cause. See Correia supra; Sharp supra. As an initial rating claim is considered an original claim under 38 C.F.R. § 3.655 (b), it is appropriate to rate the Veteran's claim for increased ratings for his neck disability based on the evidence of record under these circumstances. See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). On VA examination in April 2015, the Veteran denied flare-ups of neck symptoms. Forward flexion was to 45 degrees, extension was to 45 degrees, right and left lateral flexion was to 45 degrees, and bilateral lateral rotation was to 80 degrees. There was no additional loss of function or motion due to repetitive testing. The examiner was unable to determine whether there was additional loss of function or motion with repeated use over time without resorting to speculation. There was no guarding or muscle spasms. There was no evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. Muscle strength was normal throughout the upper extremities with no muscle atrophy. Reflexes and sensation were normal in both arms. There was mild radiculopathy of the upper extremities. No other neurological abnormalities were noted. There was no ankylosis. The examiner noted no IVDS. The condition did not impact the Veteran's ability to work. VA treatment records after 2015, show that the Veteran was treated for neck pain with radiculopathy with manual therapy and a cervical traction unit, which he reported as being really beneficial in managing his symptoms. X-rays in January 2016, showed multilevel degenerative disc disease. On VA examination in December 2016, the examiner diagnosed cervical strain, degenerative arthritis of the spine and IVDS with bilateral upper extremity radiculopathy. The Veteran endorsed flare-ups manifested by neck pain, numbness and tingling, which interfered with gripping. With repetitive movement, forward flexion was reduced to 10 degrees, extension was to 10 degrees, right lateral flexion was to 11 degrees, left lateral flexion was to 10 degrees, right lateral rotation was to 40 degrees, and left lateral rotation was to 40 degrees. There was no additional loss of function or motion due to repetitive testing. The examiner was unable to determine whether there was additional loss of function or motion with repeated use over time or with flare-ups due to increasing pain with repetitive use limits movement. There was localized tenderness with guarding resulting in abnormal gait or abnormal spine contour, but no muscle spasms. There was no evidence of pain with weight bearing. Muscle strength was normal throughout the upper extremities with no muscle atrophy. Reflexes and sensation were normal in both arms. There was moderate radiculopathy of the upper extremities. No other neurological abnormalities were noted. There was no ankylosis. The examiner noted that while IVDS was present, it did not result in episodes that required bedrest prescribed by a physician and in the past 12 months. The Veteran used a cane for ambulation. The condition interfered with gripping and neck movements. Initially, the Board notes that while the VA examiner in December 2016, noted IVDS, the evidence does not show, nor does the Veteran claim, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation due to the neck disability. Consistent with this finding, neither VA examination reports nor treatment records, show IVDS with incapacitating episodes lasting a total of at least 2 weeks but less than 4 weeks due to the neck disability during any given 12 months period and/or a herniated disc with compression or irritation of the nerve root. Thus, considering both the pre- and post-February 7, 2021 Diagnostic Code 5243, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating throughout the period on appeal under Diagnostic Code 5243 for IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the Veteran is not entitled to increased ratings based upon incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings under the General Rating Formula. Based on the evidence of record, a compensable disability rating is not warranted for the Veteran's neck disability prior to December 6, 2016. Despite the Veteran's complaints of pain, he has not shown any resulting limitation of motion, or loss of strength, weakness, or lack of endurance. To the extent degenerative changes of the cervical spine were present during the period in question, there was no objective evidence of swelling, muscle spasm, or painful motion. In short, the Veteran's only functional symptom was subjective complaints of pain, which is not enough to warrant a compensable rating under Mitchell or Burton. From December 6, 2016, the evidence shows that the Veteran has exhibited some movement in his neck, and the VA examiner specifically found no evidence of ankylosis, it follows that the cervical spine is not ankylosed. Therefore, the Board finds that the criterion for the next higher rating based on limitation of motion and orthopedic manifestations under the General Rating Formula has not been shown at any time during the appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. As the Veteran is already assigned the maximum schedular evaluation available for limitation of motion of his cervical spine disability, and a higher rating requires ankylosis, the provisions of 38 C.F.R. §§ 4.40, 4.45, and DeLuca, are therefore not applicable. As a result, the holdings in Correia and Sharp also do not apply in this case. See also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Consideration has been given to assigning a separate rating for neurological abnormalities related to the cervical spine disability. The Veteran is already in receipt of separate ratings for radiculopathy of the right and left upper extremities and those issues are not presently before the Board. Thus, the question is whether the Veteran has other associated neurological abnormalities associated with his cervical spine disability. The remainder of the medical records do not show the presence of any neurological abnormalities shown to be associated with the cervical spine disability, other than the separately rated radiculopathies that are not on appeal. The Veteran is competent to describe his observable symptoms, including back pain resulting in limitation of motion. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that his reported symptoms are inconsistent with the objective medical evidence of record, such statements are afforded less probative value, as the Veteran does not possess the medical or orthopedic expertise to assess the severity of a complex musculoskeletal or orthopedic condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical findings directly address the criteria under which this disability is evaluated. The Board accords the objective records greater weight than the Veteran's subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Therefore, the claim for increased schedular or additional separate ratings must be denied. The Board notes that a TDIU claim is considered part and parcel of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Since December 5, 2016, the Veteran has had a combined disability rating of 100 percent. To the extent he has alleged he is unemployable due to the combined effect of his disabilities after December 5, 2016, such claim is moot in light of the combined 100 percent rating. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Concerning the period prior to December 5, 2016, there is no evidence or argument even suggesting that the Veteran's neck disability actually or effectively rendered him unemployable at any pertinent point, and the evidence shows that prior to December 2016, the Veteran remained employed. VA treatment records in 2017 reflect that the Veteran retired. As such, the matter of his entitlement to a TDIU due to sinusitis prior to December 5, 2016, has not been raised in conjunction with the current claim, and need not be addressed herein. Withdrawal 3. Entitlement to an earlier effective date than August 25, 2015, for the grant of service connection of right upper extremity radiculopathy 4. Entitlement to an earlier effective date than August 25, 2015, for the grant of service connection of left upper extremity radiculopathy The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran withdrew the appeal pertaining to the claims for earlier effective dates for the grant of service connection for right and left upper extremity radiculopathy, hence, there remain no allegations of errors of fact or law for appellate consideration regarding these claims. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.