Citation Nr: 22013493 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-30 346 DATE: March 9, 2022 ORDER Entitlement to service connection for a right shoulder disability is granted. Entitlement to an increased disability rating of 20 percent for degenerative joint disease of the lumbar spine, from November 22, 2011, to December 13, 2021, is granted. Entitlement to a disability rating higher than 40 percent for a low back disability from December 13, 2021, onward is denied. Entitlement to an increased disability rating of 20 percent for cervical spine degenerative disc disease with torticollis from November 22, 2011, to December 13, 2021, is granted. Entitlement to a disability rating higher than 30 percent for cervical spine from December 13, 2021, onwards is denied. Entitlement to an increased disability rating higher than 10 percent for right lower extremity radiculopathy is denied. Entitlement to an increased disability rating higher than 10 percent for left lower extremity radiculopathy is denied. Entitlement to an increased disability rating higher than 20 percent for right upper extremity radiculopathy is denied. Entitlement to an increased disability rating higher than 20 percent for left upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The evidence does not clearly and unmistakably show that There is no clear and unmistakable evidence to support the conclusion that the Veteran's pre-existing right shoulder disability was not aggravated by service. 2. Resolving doubt in favor of the Veteran, from November 22, 2011, to December 13, 2021, his lumbar spine disability more nearly approximates forward flexion of greater than 30 degrees but not greater than 60 degrees due to functional limitations. 3. Throughout the appeal period, the Veteran's lumbar spine disability has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes lasting at least six weeks. 4. Resolving doubt in favor of the Veteran, from November 22, 2011, to December 13, 2021, his cervical spine disability more nearly approximates forward flexion of greater than 15 degrees but not greater than 30 degrees due to functional limitations. 5. Throughout the appeal period, the Veteran's cervical spine disability has not manifested with unfavorable ankylosis of the entire cervical spine or intervertebral disc syndrome (IVDS) with incapacitating episodes lasting at least six weeks 6. The evidence is against a finding that the Veteran's right lower extremity radiculopathy is manifested by moderate or worse paralysis. 7. The evidence is against a finding that the Veteran's left lower extremity radiculopathy is manifested by moderate or worse paralysis. 8. The evidence is against a finding that the Veteran's radiculopathy, right upper extremity associated with cervical spine condition has manifested in symptoms of moderate incomplete paralysis. 9. The evidence is against a finding that the Veteran's radiculopathy, left upper extremity associated with cervical spine condition has manifested in symptoms of moderate incomplete paralysis of the middle radicular group. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for an increased disability rating of 20 percent, but no higher, from November 22, 2011, to December 13, 2021, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5237. 3. The criteria for a rating higher than 40 percent from December 13, 2021, onward, for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5237. 4. The criteria for an increased disability rating of 20 percent, but no higher, from November 22, 2011, to December 13, 2021, for a cervical spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5237. 5. The criteria for a rating higher than 30 percent from December 13, 2021, onward, for a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5237. 6. The criteria for an initial rating higher than 10 percent for right lower extremity radiculopathy associated with lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8526. 7. The criteria for an initial rating higher than 10 percent for left lower extremity radiculopathy associated with lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8526. 8. The criteria for an initial rating higher than 20 percent for right upper extremity radiculopathy associated with cervical spine condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.124(a), DC 8511. 9. The criteria for an initial rating higher than 20 percent for left upper extremity radiculopathy associated with cervical spine condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.124(a), DC 8511. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Air Force from December 1975 to March 1994. During this time, he was awarded the Meritorious Service Medal, the Occupation Medal, and the National Defense Service Medal, among other medals. In May 2020, the Board denied the Veteran's appeal for higher ratings for his lumbar and cervical spine disabilities; and for his service connection claims for left and right shoulder disabilities. The Veteran subsequently appealed the Board's May 2020 decision to the United States Court of Appeals for Veterans' Claims (CAVC). In a June 2021 Joint Motion for Remand (JMR), the CAVC vacated and remanded the Board's May 2020 decision. Accordingly, in September 2021, the Board remanded the matter for actions consistent with the CAVC's order. The matter has returned to the Board for further appellate review. As a result of additional development recently completed, a January 2022 rating decision increased the rating for the Veteran's lumbar spine disability from 10 percent to 40 percent, and his cervical spine disability from 10 percent to 30 percent effective December 13, 2021 (date of VA examinations). The AOJ also granted separate ratings for radiculopathy of the lower and upper extremities associated with the Veteran's lumbar and cervical spine disabilities. As the Veteran has not expressed satisfaction with the "staged" increase in the rating, both stages of the ratings on the service-connected lumbar and cervical spine disabilities and the separate ratings for the associated radiculopathies remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In a January 2022 rating decision, service connection was granted for a left shoulder disability with a non-compensable rating, effective from November 22, 2011. Service connection was also granted for surgical scar associated with the left shoulder disability, with a noncompensable rating effective February 12, 2014. Therefore, as the service connection claim for a left shoulder disability has been granted, it is no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 1. Entitlement to service connection for a right shoulder condition The Veteran contends that his right shoulder disability is related to service. The evidence of record reveals that the Veteran's right shoulder disability pre-existed service. See Medical Treatment Record - Government Facility. The Veteran has asserted that he did a lot of overhead work during active duty and that he injured his shoulders climbing poles and lifting/ pulling cables in service. See August 2019 Hearing Transcript. The Veteran's service treatment records (STRs) include reports and treatment of a shoulder condition. A November 1979 treatment note indicated that the Veteran had cervical sprain radiating to shoulders and back from wrestling. See STRs. In his February 2014 Notice of Disagreement (NOD) the Veteran stated that he was treated for right shoulder problems on active duty and has had ongoing shoulder problems ever since. An August 2003 Physical Therapy noted that the Veteran had a motor vehicle accident few weeks back and that the Veteran reported that he was still sore from upper/lower back, shoulders, and lower legs pain. See Medical Treatment Record - Government Facility. A December 2006 treatment record reveals that Veteran complained of right shoulder pain that worsens at night. See Medical Treatment Record - Government Facility. The Veteran was afforded a VA examination in April 2013. He was diagnosed with right shoulder degenerative arthritis and left shoulder degenerative joint disease. The Veteran reported bilateral arm pain that started during service due to "doing a lot of work overhead" and that he had experienced pain since then, in both shoulders. The examiner opined that the condition was less likely than not related to service injury. The examiner's rationale was that the Veteran reported having shoulder injuries in high school; that the pre-existing complaints were not consistent with radiculopathy and more likely myofascial syndrome; that there were no other complaints until 2007; and that there was no indication of a chronic arm condition for thirteen years after active duty. See April 2013 VA Examination. The Board finds this examination inadequate because the examiner did not address the lay assertions made by the Veteran but mainly relied on lack of documentation to formulate his opinion. The Veteran was afforded a VA examination in January 2020. It was noted that the Veteran has bilateral degenerative arthritis of the shoulders and degenerative changes S/P arthroscopy. The Veteran reported that his shoulder pain is related to active duty job tasks such as pulling wires, climbing poles, has since had to have surgeries on both shoulders. The examiner opined that although it is possible for repetitive motion stress to lead to trauma to a joint, the Veteran was not seen at any time during service for his complaints of pain related to performing repetitive occupational tasks. Due to this, the examiner was unable to state that the Veteran's occupational tasks while serving led to the development of degenerative changes. In addition, the Veteran sustained injuries before service, (as documented by the wrestling injury sustained in high school), and he sustained injuries after service (as documented by the MVA accident), in which he sustained an injury to his shoulders) which could have led to the Veteran's current degenerative changes. The examiner explained that degenerative changes can occur as a result of repetitive trauma, inflammation, wear and tear, and aging (Loesser, 2018). The examiner further opined that the shoulder condition clearly pre-existed service and was clearly and unmistakably not aggravated beyond natural progression by service. As rationale, the examiner noted that temporary aggravation is probable but that there was no evidence of permanent aggravation of pre-existing degenerative changes because there was no evaluation or management of the shoulder pain during service, and that the Veteran's history of trauma prior to service and related processes are more likely than not what led to degenerative changes. See January 2020 C&P Examination. The Board finds the pre-existing aggravation opinion inadequate as the evidence suggests that the Veteran was treatment for shoulder conditions in service. The Veteran was recently afforded a VA examination in December 2021. The Veteran reported that he continued to have pain to both shoulders on and off throughout the rest of service which has progressively worsen over the years. He reported that he has had physical therapy on several occasions and surgery to the right shoulder around 2019. He stated that his symptoms did not improve after the surgery and that he experiences constant pain that is worse with certain movements and activities. The pain makes it difficult performing weight bearing activities such as lifting, lifting overhead, or reaching behind. The pain also makes it difficult to sleep at night. Regarding the right shoulder disability, the examiner opined that the claimed condition was less likely than not caused or aggravated by the Veteran's service connected disability and that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner's rationale was that there was no sufficient evidence in medical records to support that the Veteran's right shoulder disability was aggravated beyond its natural progression by an in-service injury, event, or illness; and that there was no causative relationship between the right shoulder and the service connected neck disability. See December 2021 C&P Examination. The Board finds this examination inadequate the rationale provided is conclusory. The Board notes that the critical and pertinent medical opinion required to answer the question "whether there was clear and unmistakable evidence that the pre-existing right shoulder disability was not aggravated by service" has not been answered. Having sought this answer a number of times without success, the Board sees no reason why another attempt would be useful for the purposes of obtaining a more probative answer. As such, the Board is left with no recourse but to infer that there is no clear and unmistakable evidence available to support the conclusion that the pre-existing right shoulder disability was not aggravated by service. The VA examiners have opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiners have reasoned that with no documented complaint or treatment for a right shoulder disability many years after service, there is no aggravation by service. The Board notes however that the Veteran has consistently asserted, during the course of seeking treatment for his right shoulder disability that, he experienced symptoms of bilateral shoulder pain while in service which has continued to date. The Board also finds that there is no superseding event because even before the Veteran's post-service motor vehicle accident, there were complaints of bilateral shoulder pains in the medical records. The Board notes that the presumption of aggravation is at issue in this matter and the claim has been remanded multiple times to obtain an adequate medical opinion to address this issue. However, because there has been no adequate answer to the question at hand, the Board must conclude as a matter of law that the Veteran's pre-existing right shoulder disability was presumptively aggravated by service, and that service connection must be granted on that basis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right shoulder disability based upon aggravation of a pre-existing disorder is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38U.S.C. §1155; 38C.F.R. §§3.321(a), 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. 38C.F.R. §4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38U.S.C. §5107(b); 38C.F.R. §4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38C.F.R. §4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38C.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. 38C.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 38C.F.R. §4.71a (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). If the evidence for and against a claim is in equipoise, the claim will be granted. 38C.F.R. §4.3. A claim will be denied only if the weight of the evidence is against the claim. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38C.F.R. §4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. 1. Entitlement to an increased disability rating of 20 percent for degenerative joint disease of the lumbar spine from November 22, 2011, to December 13, 2021 2. Entitlement to an increased disability rating higher than 40 percent for a low back disability from December 13, 2021, onward The Veteran contends that his lumbar spine disability warrants higher ratings. For the reasons below and resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased rating of 20 percent is warranted from November 22, 2011, to December 13, 2021, but that a rating higher than 40 percent is not warranted at any point during the appeal period. The Veteran's lumbar spine disability is currently rated at 10 percent from November 22, 2011, to December 13, 2021; and 40 percent from December 13, 2021, onward under DC 5237. Disabilities of the spine (other than IVDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, DC 5242, Note (2). IVDS is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1), Formula for Rating IVDS Based on Incapacitating Episodes. Under the IVDS Formula for intervertebral disc syndrome, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Turning to the evidence of record, the Veteran was afforded a VA examination in April 2013. At that time, the Veteran reported experiencing stiffness, fatigue, spasms, and decreased motion. He also reported that during flare-ups, he experiences functional impairment, which he described as no jogging, no heel to toe, no lateral motion and limited motion. On clinical examination, the Veteran's range of motion (ROM) measurements were: 90 degrees forward flexion, 30 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right lateral rotation, and 30 degrees left lateral rotation. The examiner noted that there was no additional loss following repetitive use. There was no evidence of ankylosis. See April 2013 VA examination. An April 2012 Lumbar Xray showed advanced degenerative disc disease L5-S1 with marked disc space loss at this level, remainder of disc spaces were normal, posterior elements and soft tissues were unremarkable. The Lumbar MRI showed lower lumbar degenerative disc disease, most pronounced at L4-L5 (disc protrusion combined with facet hypertrophy causing mild-moderate canal stenosis) and L5-S1 (significant right-sided facet hypertrophy combined with disc protrusion that caused moderate-severe neuroforaminal narrowing). See Medical Treatment Record - Non-Government Facility. In a January 2015 treatment note, the Veteran reported that his back problem fluctuates, occurs persistently, with no radiation of pain, and that his symptoms were a bit more problematic than in 2012 when the physician interviewed him. The treatment note indicated that the Veteran had "stable chronic disc disease" and that his treating doctor at the time characterized his condition as "chronic uncomplicated axial lower back pain" with "no firm indications for surgery; that the pain does not cause major interruptions of his ADLs [activities of daily living]; and that he has not tried NSAIDs, PT, chiropractic, or therapeutic injections, any of which might help." See January 2015 Medical Treatment Record - Non-Government Facility. The Veteran was afforded a VA examination in January 2020. The Veteran's forward flexion of the lumbar spine was to 90 degrees; extension ended at 30 degrees; right and left lateral flexion and rotation each was to 30 degrees. Painful motion was noted on all aspects of ROM testing but was not indicated to contribute to functional loss; there was evidence of pain with weightbearing; and there was mild pain on palpation of the L3-L3 joint directly related to the Veteran's service-connected condition. The Veteran was able to perform repetitive use testing, which the examiner noted did not result in an additional loss of range of motion for any aspect of testing. The examiner determined that the examination was medically consistent with the Veteran's statement regarding functional loss with repetitive use over time. It was noted that the Veteran denied having flare-ups. Muscle strength testing was normal. There was no evidence of muscle atrophy, radiculopathy or ankylosis. It was noted that the Veteran used a back brace occasionally. The examiner did not observe guarding or muscle spasm of the spine that resulted in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran reported that his back pain was such that when he has it, he has to sit; that the pain was sharp, intermittent, and local in nature; that it was improved by taking motrin or aspirin, and worse with bending; and that it hindered his ability to do yard work, exercise, and that he has problems with "everything." He also noted that the Veteran had upcoming physical therapy sessions and that he also uses a TENS unit. No IVDS was noted. See January 2020 VA examination. The Veteran was afforded another VA examination in December 2021. He was diagnosed with degenerative joint disease, degenerative disc disease and bilateral lower extremity radiculopathy. The Veteran reported that he has constant back pain that is worse with increased physical or weight bearing activities especially with prolonged standing, walking, and bending. He stated that he has also been having shooting pain with numbness to bilateral lower extremity, and that the pain makes it difficult to perform weight bearing such as bending and lifting as well as standing and walking for long and even sleeping. It was noted that the Veteran reported no flare-ups. The Veteran described functional impairment as "I don't sleep well at night; when I turn, I have to inch my way; I can't just rollover. It's hard for me to get up and down." ROM testing showed forward flexion to 10 degrees and extension to 5 degrees. There was evidence of pain on weight bearing, active motion that causes functional loss as the Veteran had decreased ability in performing activities that require, sitting, standing, walking, climbing, lifting, or bending especially with repetitive or prolonged use/activity. Muscle strength testing was normal. There was no evidence of muscle atrophy, IVDS or ankylosis. Testing revealed mild symptoms at bilateral lower extremity, femoral nerve. See December 2021 C&P Examination. A thorough review of the medical records for the period between November 22, 2011, and December 13, 2021, show complaints of worsening lower back pain and some unspecified radicular symptoms, which the Veteran treated primarily with medication and physical therapy with occasional brace use. The evidence also reveals reported difficulty sleeping due to back pain, and flare-ups with bending in certain positions. See Medical Treatment Record - Government Facility; See also Medical Treatment Record - Non-Government Facility. At his August 2019 Board Hearing, the Veteran asserted that his lumbar spine symptoms had worsened since his last VA examination. He reported that his back condition flares during cold weather; that he could not bend over for periods of time and bending irritated his back and put him out for "a couple days"; that back pain woke him up from sleep; and that he had flare-ups that happened "at least a couple [of times] per month if not more." See August 2019 Board Hearing Transcript. Based on the foregoing, after considering additional functional loss due to pain and during flare ups and affording the Veteran the benefit of doubt, the Board finds that a 20 percent rating for the period from November 22, 2011, to December 2021 is warranted. Although no ROM testing showed forward flexion to 60 degrees or less prior to December 2021, at Board Hearing, the Veteran reported severe flare-ups, which the January 2020 VA examiner did not take in account. Additionally, the November 2014 MRI examinations denoted worsening of the lumbar spine disability. The Veteran also reported ongoing worsening pain in his VA and private treatment records. When considering functional limitations due to pain, the Board finds that the Veteran's lumbar spine disability more nearly approximated 60 degrees. While the April 2013 and January 2020 examinations show forward flexion to 90 degrees, the Board notes that the examiners provided inadequate opinions regarding additional functional loss after repeated use over time and during flare-ups as evidenced by the Veteran's lay assertions and the treatment records. Therefore, ROM findings may not be an adequate picture of the Veteran's disability with consideration of the DeLuca factors and his significant sleep impairment. Considering these cumulative findings, and affording the Veteran the benefit of the doubt, the Board finds that the functional limitations caused by pain and during flare-ups warrant a finding that the Veteran's lumbar spine disability has closely approximated forward flexion to 60 degrees from November 22, 2011, to December 13, 2021. This warrants the assignment of a 20 percent rating. As of December 13, 2021, the Veteran is rated at 40 percent. The Veteran contends that the rating assigned is inadequate. To the extent that the examinations of record do not fully comply with requirements of DeLuca, Sharp, and/or Correia, the Board notes that the Veteran is now in receipt of the maximum schedular rating for lost range of motion for the appeal period under review, and any higher rating would require ankylosis. Thus, the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca, Sharp, and Correia do not apply. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (finding that where a Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis, the regulations pertaining to functional impairment are not for application). The Board finds that a higher rating of 50 percent is not warranted at any point during the appeal period. This is because there is no clinical evidence of unfavorable ankylosis per the VA examinations or the medical records. Even with consideration of additional functional loss, the competent evidence does not reflect lumbar spine motion that approximates unfavorable ankylosis. The Veteran has not asserted otherwise. Moreover, a higher rating is also not warranted under the IVDS Formula as there is no evidence of incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. The Board has considered whether separate ratings are warranted for neurologic impairment. The Veteran already has been granted service connection for radiculopathy of the left and right lower extremity. There is no evidence of record to indicate, and the Veteran has not contended, that he has any other neurologic impairments due to his lumbar spine disability. The Board also notes that 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. See 85 Fed. Reg. 76453. However, in this case, the revised changes were essentially non-substantive. Thus, no additional consideration in this regard since February 7, 2021, onward is needed. In light of the foregoing and resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 20 percent, but no higher, for the Veteran's lumbar spine disability is warranted from November 22, 2011, to December 13, 2021, but that a rating higher than 40 percent is not warranted at any time for the appeal periods under review. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DCs 5237, 5242; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an increased disability rating of 20 percent for cervical spine degenerative disc disease with torticollis from November 22, 2011, to December 13, 2021. 4. Entitlement to a disability rating higher than 30 percent for cervical spine from December 13, 2021, onward. The Veteran's cervical spine disability is assigned a 10 percent initial rating under DC 5242. 38 C.F.R. § 4.71a. Under DC 5242, General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for evidence of 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. Id. A 20 percent rating is assigned for evidence of 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. Id. A 30 percent rating is assigned for evidence of forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for evidence of unfavorable ankylosis of the entire cervical spine. Id. A 100 percent rating is assigned for evidence of unfavorable ankylosis of the entire spine. Id. Normal cervical spine motion includes forward flexion from 0 to 45 degrees and normal combined range of motion of the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Plate V. Turning to the evidence of record, post-service VA and private treatment records reflect diagnosis of and treatment for degenerative changes to the Veteran's cervical spine. The Veteran underwent a VA examination for his cervical spine in April 2013. He reported flare-ups and that he experiences problems with side to side flexion and rotation when they happen. The examiner diagnosed the Veteran with degenerative changes of the cervical spine. Initial range of motion testing and repetitive use testing showed forward flexion and extension of the cervical spine to 45 degrees with painful motion staring at 45. Right and left lateral flexion with painful motion starting at 40. There was no evidence of guarding or muscle spasms or ankylosis. IVDS was not found upon examination. See April 2013 VA Examination. In November 2013, the Veteran reported constant bilateral posterior neck pain that was aching, throbbing, gnawing, and becomes worse by flexion, sneezing, turning head and Valsalva, with no relieving factors. The Veteran also reported difficulty sleeping. The following was notated on the Clinical Assessment; "the patient is a 58 year old male who presents with severe pain radiating from the left neck to the arm associated with profound weakness and early atrophy of the deltoid and pectoral, both of which are weak. This correlates nicely with the C4-5 HNP depicted on his MRI. Given the above findings, he has strong indication for ACDF at C4- 5 to decompress the nerve and fuse the segment. There is not a valid nonsurgical method for him. Explained the problem and the rationale for operation. Risks in particular are CS root palsy- it is already damaged and surgical manipulation might damage it further." Subsequent medical records reflect that the Veteran underwent a diskectomy and fusion procedure to treat a herniated cervical disk in November 2013. See November 2013 United Regional Operative Report. An MRI obtained in November 2014 reflected that the Veteran had "significant spondylitis changes" and bilateral neuroforaminal narrowing at multiple levels of the cervical spine. See November 2014 MRI C-Spine Patient Report. At his August 2019 Board Hearing, the Veteran asserted that his cervical spine symptoms had improved after his surgery, but that he had pain and discomfort during cold weather. He reported that his neck tended to get stiff, and that his neck would sometimes "lock up" such that he could not turn it from side to side, and that in response he had learned to turn his whole body and not move his head. See August 2019 Board Hearing Transcript. The Veteran was afforded a VA examination for his cervical spine in January 2020. The Veteran's forward flexion of the cervical spine again was to 45 degrees; extension ended at 45 degrees; right and left lateral flexion each ended at 45degrees; and right and left lateral rotation each ended at 80 degrees. The Veteran was able to perform repetitive use testing, which did not result in an additional loss of range of motion for any aspect of testing. There was pain on motion, but it did not cause functional loss; pain on weightbearing was also noted. Pain on palpation was noted at the C5-C7 joint and was found to be directly related to the Veteran's service-connected condition. Muscle strength testing was normal, and no muscle atrophy was observed. Testing of deep tendon reflexes and light sensation testing all yielded normal results as well. No radiculopathies were observed. There was no ankylosis, and the Veteran did not report using any assistive devices. The Veteran reported that his neck pain was sharp, local, and intermittent, and caused headaches that caused him to be immobilized; and that it was made better with rest and made worse with movement. He also indicated that he was not taking any medications or doing any therapies for the pain but instead "had learned to deal with the pain." IVDS was not noted. See January 2020 C&P Examination. The Veteran was afforded another VA examination in December 2021. The diagnoses were cervical spine degenerative disc disease with torticollis, cervical fusion with discectomy, and bilateral upper extremity radiculopathy. His current symptoms included neck pain and limited ROM. The examiner noted that the Veteran did not report flare-ups of the cervical spine. The Veteran described functional loss as "...for me to look at something, I have to turn my body. When I'm driving, I have to turn my shoulders to look at upcoming traffic. I can't move my neck left or right, up or down very much..." On examination, initial ROM testing revealed abnormal measurements, with forward flexion to 5 degrees, extension to 10 degrees. There was evidence of pain on weight-bearing, non-weight-bearing, active motion that causes decreased ability in performing activities that require repetitive neck/head movement especially with prolonged use/activity. It was noted that the Veteran have localized tenderness, guarding or muscle spasm of the cervical spine not resulting in abnormal gait or abnormal spinal contour. Muscle strength was normal. Testing revealed mild symptoms of bilateral upper extremity at upper radicular group and middle radicular group. There was no evidence of ankylosis or IVDS. The examiner remarked that the new diagnosis is a progression of service connected condition, and that this was due to further deterioration of the cervical spine secondary to mechanical stress caused by the established condition. See December 2021 C&P Examination. Upon review and consideration of the evidence of record in totality, the Board finds that, from November 22, 2011, to December 13, 2021, a 20 percent rating for the Veteran's cervical spine disability is warranted. A review of the evidence of record, to include private treatment records and the Veteran's lay statements, reveals that the Veteran suffered additional functional loss due to his pain on motion as contemplated by 38 C.F.R. § 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The medical evidence of record indicates that the Veteran consistently received treatment for his cervical spine disability, to surgery. Additionally, at the April 2013 VA examination, the examiner noted that the Veteran exhibited pain on motion which caused additional functional loss. Accordingly, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record, both medical and lay, reveals that the Veteran not only suffered from the limitation of motion as identified during his VA examinations but also suffered from additional functional loss due to pain on motion. As outlined above, while the Board notes that the Veteran does not meet the range of motion criteria for a rating higher than 10 percent, however, considering those additional functional loss due to flare-ups, pain and difficulty sleeping, the next applicable rating of 20 percent, but no higher, is warranted in this case based on the factors contemplated by DeLuca. The Board also notes that the Veteran had not been diagnosed with IVDS of the cervical spine, and therefore, the formula for rating intervertebral disc syndrome based on incapacitating episodes is not for application. 38 C.F.R. § 4.71a Beginning December 13, 2021, onward, the Veteran is rated at 30 percent disabling for his cervical spine disability. The only way the Veteran could be assigned a rating higher than 30 percent for limitation of motion of the cervical spine, is if the medical evidence showed ankylosis of the cervical spine or by incapacitating episodes of IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5243. None of the medical evidence of record establishes ankylosis of the cervical spine. The Board finds, that even considering the Veteran's limited range of motion for the periods under review, that does not constitute immobility, or akin of ankylosis. There has been a measurable range of motion of the cervical spine. Thus, immobility, or ankylosis, is not shown. For this reason, the Board finds that a rating higher than 30 percent from December 13, 2021, onward for a cervical spine disability is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Ratings for Associated Radiculopathy 5. Entitlement to an increased rating higher than 10 percent for left lower extremity radiculopathy 6. Entitlement to an increased disability rating higher than 10 percent for right lower extremity radiculopathy Pursuant to the instructions of Note (1) under the General Rating Formula for Diseases and Injuries of the Spine, the Board will assess whether the Veteran is entitled to a rating higher than his currently assigned separate 10 percent ratings for right and left lower extremity radiculopathy of the femoral nerve, associated with lumbar spine disability. 38 C.F.R. § 4.71 (a). During the course of this appeal, the AOJ granted separate ratings for radiculopathy of the lower extremities associated with the Veteran's lumbar spine disability. The Veteran's disabilities are evaluated under Diagnostic Code (DC) 8526 effective December 13, 2021. DC 8526 provides that mild incomplete paralysis of the femoral nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the femoral nerve. A 30 percent rating requires severe incomplete paralysis of the femoral nerve. A 40 percent rating requires complete paralysis of the quadriceps extensor muscles. The words "slight," "moderate", and "severe" as used in the various DCs 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 term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). See also Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). As noted above, radiculopathy was observed at the December 2021 VA examination. Testing revealed mild symptoms at bilateral lower extremity, femoral nerve. See December 2021 C&P Examination. The April 2013 and January 2020 examiners indicated that there were no objective findings of radiculopathy. The Board finds no evidence in the record suggesting that the Veteran's radiculopathy symptoms were worse than mild. In addition, VA and private medical records for the entire period show only general complaints of pain radiating to the lower extremities. There are neither objective findings nor statements from the Veteran which contradict the December 2021 VA examiner's characterization of the severity of his symptoms. Accordingly, the evidence is against a rating higher than 10 percent for the right and left lower extremity radiculopathy respectively. In light of the lack of findings of radiculopathy during the April 2013 and January 2020 VA examinations, the Board concludes that a separate rating prior to the December 13, 2021, for the Veteran's radiculopathy, is not warranted. In sum, the Veteran is adequately compensated for his bilateral lower extremity radiculopathy symptoms under the existing 10 percent ratings. There is no remaining reasonable doubt to resolve in the Veteran's favor. Gilbert, 1 Vet. App. at 53. 7. Entitlement to an increased disability rating higher than 20 percent for right upper extremity radiculopathy 8. Entitlement to an increased disability rating higher than 20 percent for left upper extremity radiculopathy Pursuant to the instructions of Note (1) under the General Rating Formula for Diseases and Injuries of the Spine, the Board will assess whether the Veteran is entitled to a rating higher than his currently assigned separate 20 percent ratings for his right and left upper extremity radiculopathy associated with cervical spine disability. 38 C.F.R. § 4.71 (a). The Veteran is currently rated for his left and right upper extremity radiculopathy under DC 8511, which states that a 20 percent evaluation requires mild incomplete paralysis of the middle radicular group and that a 40 percent evaluation requires moderate incomplete paralysis of the middle radicular group. 38 C.F.R. § 4.124 (a). At the December 2021 VA examination, the Veteran had radiculopathy of his right upper and left upper middle radicular group manifested by mild paresthesias and/or dysesthesias and numbness, which are wholly sensory symptoms. The examiner marked "no" when asked if the Veteran had any other signs or symptoms of radiculopathy. The guidance in the General Rating Formula for Diseases of the Peripheral Nerves states that when "the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree." See 38 C.F.R. § 4.124 (a). Therefore, given that the Veteran's radiculopathy was manifested by wholly sensory symptoms that were mild in severity, it was appropriate for the AOJ to assign the current separate ratings for the Veteran's bilateral upper extremity radiculopathy under DC 8511. The above evidence, in addition to the fact that the Veteran did not have any radiculopathy at his April 2013 and January 2020 VA examinations, fails to show that the Veteran has had moderate incomplete paralysis of the middle radicular group. The Board finds that the Veteran's level of disability more closely approximates the criteria for a 20 percent disability rating, and a higher rating is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Of note, the record does not show that the Veteran suffers from any other neurological abnormalities due to his cervical spine disability. In light of the lack of findings of radiculopathy during the April 2013 and January 2020 VA examinations, the Board concludes that a separate rating prior to the December 13, 2021, for the Veteran's radiculopathy, is not warranted. In sum, the Veteran is adequately separately compensated for his right upper and left upper extremity radiculopathy under the existing 20 percent ratings. There is no remaining reasonable doubt to resolve in the Veteran's favor. Gilbert, 1 Vet. App. at 53. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, Associate 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.