Citation Nr: 22014175
Decision Date: 03/11/22	Archive Date: 03/11/22

DOCKET NO. 19-17 016
DATE:       March 11, 2022

ORDER

The appeal for entitlement to an effective date earlier than October 20, 2014, for the award of service connection for left upper extremity radiculopathy has been withdrawn.

The appeal for entitlement to an effective date earlier than October 20, 2014, for the award of service connection for right upper extremity radiculopathy has been withdrawn.

The appeal for entitlement to an effective date earlier than July 6, 2015, for the award of service connection for lumbosacral strain with DDD (lumbar spine disability) has been withdrawn.

Entitlement to a disability rating in excess of 10 percent for cervical spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) (cervical spine disability) prior to June 24, 2019, is denied.

Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability prior to June 24, 2019, is denied.

Entitlement to an initial disability rating in excess of 20 percent for left upper extremity radiculopathy prior to June 24, 2019, is denied.

Entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy prior to June 24, 2019, is denied.

REMANDED

Entitlement to a disability rating in excess of 20 percent for a cervical spine disability from June 24, 2019, is remanded.

Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability from June 24, 2019, is remanded.

Entitlement to an initial disability rating in excess of 30 percent for left upper extremity radiculopathy from June 24, 2019, is remanded.

Entitlement to an initial disability rating in excess of 40 percent for right upper extremity radiculopathy from June 24, 2019, is remanded.

FINDINGS OF FACT

1. During the January 2021 hearing, the Veteran, through his representative, withdrew his appeals for entitlement to effective dates earlier than October 20, 2014, for the award of service connection for left and right upper extremity radiculopathy, and earlier than July 6, 2015, for the award of service connection for a lumbar spine disability.

2. Prior to June 24, 2019, the Veteran's cervical spine disability manifested primarily in pain, with forward flexion limited, at worst, to 35 degrees and combined range of motion, at worst, to 185 degrees.

3. Prior to June 24, 2019, the Veteran's lumbar spine disability manifested primarily in pain, with forward flexion limited, at worst, to 70 degrees and combined range of motion, at worst, to 200 degrees.

4. Prior to June 24, 2019, the Veteran's left upper extremity radiculopathy manifested in mild incomplete paralysis of the upper radicular group, with symptoms including pain and numbness.

5. Prior to June 24, 2019, the Veteran's right upper extremity radiculopathy manifested in mild incomplete paralysis of the upper radicular group, with symptoms including pain and numbness.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for entitlement to an effective date earlier than October 20, 2014, for the award of service connection for left and right upper extremity radiculopathy and earlier than July 6, 2015, for a lumbar spine disability by the Veteran are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020).

2. The criteria for entitlement to a disability rating in excess of 10 percent for a cervical spine disability prior to June 24, 2019, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243 (2020)

3. The criteria for entitlement to a disability rating in excess of 10 percent for a lumbar spine disability prior to June 24, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020).

4. The criteria for entitlement to a disability rating in excess of 20 percent for left upper extremity radiculopathy prior to June 24, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510 (2020).

5. The criteria for entitlement to a disability rating in excess of 20 percent for right upper extremity radiculopathy prior to June 24, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2000 to January 2004. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) regional office.

In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding is of record.

Withdrawals

1. Entitlement to an effective date earlier than October 20, 2014, for the award of service connection for left upper extremity radiculopathy

2. Entitlement to an effective date earlier than October 20, 2014, for the award of service connection for right upper extremity radiculopathy.

3. Entitlement to an effective date earlier than July 6, 2015, for the award of service connection for a lumbar spine disability.

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. Id. In the present case, the Veteran, through his authorized representative, has withdrawn his appeals for entitlement to earlier effective dates for the award of service connection for bilateral upper extremity radiculopathy and for a lumbar spine disability. January 2021 Hearing Transcript. This withdrawal was explicit, unambiguous, and made with knowledge of the consequences. Id. As such, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals as to these matters and they are dismissed.

Increased Ratings

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (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.").

4. Entitlement to a disability rating in excess of 10 percent for a cervical spine disability prior to June 24, 2019.

5. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability prior to June 24, 2019.

Prior to June 24, 2019, the Veteran's neck and back disability are each rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243 and 5237, respectively. Disabilities of both the cervical and thoracolumbar spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Disability of the cervical and thoracolumbar spine segments are to be evaluated separately unless there is unfavorable ankylosis of both segments. General Formula at Note 5.

With respect to the cervical spine, a10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. 

With respect to the thoracolumbar spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. 

When IVDS is present, Diagnostic Code 5243 provides that it may be rated under the General Formula or, alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Effective February 7, 2021, Diagnostic Code 5243 was amended to read that it should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2021).

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. 

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula at Note 1. 

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. General Formula at Note 1. 

The Veteran first underwent VA examination in connection with these claims in February 2016. February 2016 C&P Exams. With respect to the cervical spine, the examiner diagnosed IVDS and DDD with radiculopathy; the Veteran's cervical radiculopathy is service connected and will be discussed below. The Veteran complained of increased pain and a loss of range of motion. He did not report flare-ups, but described functional loss due to less motion and more pain. Range of motion testing revealed forward flexion to 35 degrees, extension to 35 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 60 degrees, for a combined range of motion of 250 degrees. There was no evidence of pain with weight bearing or of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing with no additional loss of function. The examiner noted no evidence of localized tenderness, guarding, muscle spasm, or ankylosis. The Veteran demonstrated normal strength and reflexes. The examiner found that there had been no episodes of acute signs and symptoms of IVDS requiring bed rest in the past 12 months. The examiner opined that the Veteran would have difficulty with overhead activity.

With respect to the thoracolumbar spine, the February 2016 examiner diagnosed lumbosacral strain and DDD. The Veteran complained of constant low back pain, but denied radicular symptoms. He did not report flare-ups, but described functional impairment due to less motion and more pain. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 30 degrees, for a combined range of motion of 200 degrees. There was no evidence of pain with weight bearing, and the Veteran was able to perform repetitive-use testing with no additional loss of function. There was no evidence of guarding, muscle spasm, ankylosis, or IVDS. Strength, reflex, and sensory examinations were normal. The examiner opined that the Veteran would have difficulty with heavy lifting.

In September 2018, the Veteran submitted a private evaluation from Dr. N.S. describing the current severity of his cervical and lumbar spine disabilities. September 2018 Medical Treatment Record  Non-Government Facility. With respect to the cervical spine, Dr. N.S. checked a box indicating that the disability results in impairment commensurate with the criteria for a 20 percent rating; that is, in forward flexion greater than 15 degrees but not greater than 30 degrees, a combined range of motion not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. However, range of motion testing revealed forward flexion to 40 degrees with pain beginning at 30 degrees, and extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 30 degrees, all with pain at the end points of the range. This results in a combined range of motion of 185 degrees. The Veteran reported daily flare-ups lasting for one to two hours and causing him to need to lie down and avoid driving. The examiner opined that the disability would have an impact on the Veteran's activities of daily living in that it would cause difficulty with driving, lifting, carrying, standing, sitting, or walking for long periods.

With respect to the lumbar spine, Dr. N.S. checked a box indicating that the disability results in impairment commensurate with the criteria for a 20 percent rating, that is, with forward flexion of the thoracolumbar spine to 30 degrees or less. Upon range of motion testing, forward flexion was to 90 degrees, extension to 10 degrees, and bilateral lateral flexion to 10 degrees; pain was noted at 20 degrees, 5 degrees, and 5 degrees, respectively, and it does not appear that lateral rotation was tested. The Veteran reported daily flare-ups lasting for two hours and causing him to need to lie down and avoid driving. The examiner noted the impact on the Veteran's activities of daily living to be the same as those caused by the cervical spine disability.

Treatment records and lay statements during the period on appeal reflect findings consistent with those noted above. An April 2018 chiropractor report reflects that the Veteran complained of acute pain in the neck and back, with frequent discomfort described as aching, sharp, shooting, stiff, tight, and tingling. September 2021 Medical Treatment Record  Non-Government Facility. The Veteran described wanting to be able to play basketball with his son. Id. During his January 2021 hearing, the Veteran testified that, prior to June 2019, his pain was less frequent and less severe than currently. January 2021 Hearing Transcript.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for either the neck or back disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, including during flare-ups and with repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has flare-ups, typically consisting of increased pain, would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees; or forward flexion of the thoracolumbar spine to 30 degrees or less. In that regard, while Dr. N.S. opined that the Veteran's function was limited to this degree, the opinion is belied by the evidence demonstrating ranges of motion beyond that contemplated by the criteria for a higher rating; specifically, the Veteran was able to demonstrate cervical flexion to 40 degrees and lumbar flexion to 90 degrees. As such, the opinion of Dr. N.S. as to the degree of impairment is not supported by the examination or by any medical rationale. Further, while Dr. N.S. indicated that pain began before the end point of the Veteran's ranges of motion for both the cervical and lumbar spine, pain is already contemplated by the rating criteria, and the evidence does not suggest that pain prevents the Veteran from achieving the ranges of motion noted on examination. Additionally, the Veteran the evidence does not reflect that the Veteran experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, nor was there evidence of ankylosis. 

Consideration has also been given to assigning a rating under the IVDS Formula for the cervical spine disability, as IVDS was noted upon VA examination. However, the evidence weighs persuasively against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, IVDS Formula. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability beyond the cervical radiculopathy discussed below.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for ratings in excess of 10 percent for his cervical and lumbar spine disabilities prior to June 24, 2019. As the evidence of record persuasively weighs against the assignment of ratings in excess of 10 percent prior to June 24, 2019, the benefit-of-the-doubt rule does not apply, and the claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022).

During the Veteran's January 2021 hearing, he testified that his disabilities began to worsen in June 2019, around the time he submitted statements describing an increase in his symptoms. See June 2019 VA 21-4138. While he has been awarded an increased rating for the cervical spine disability from the date of the statement, he testified that the conditions have continued to worsen. January 2021 Hearing Transcript. Accordingly, as discussed below, the Board is remanding the matters of entitlement to increased ratings from the date of the statement in order to obtain more evidence regarding the current nature of the Veteran's disabilities.

6. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity radiculopathy prior to June 24, 2019.

7. Entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy prior to June 24, 2019.

For the period prior to June 24, 2019, the Veteran is currently in receipt of 20 percent disability ratings for radiculopathy of the left and right upper extremities affecting the median nerve. He is right hand dominant. See January 2021 Hearing Transcript. 

The Veteran's radiculopathy is currently rated as paralysis of the upper radicular group, and is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8510. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete paralysis, meaning that all shoulder and elbow movements are lost or severely affected, is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. 

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120 (2020). Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124 (2020).

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level 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 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. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran first underwent VA examination to evaluate his cervical radiculopathy in February 2016. February 2016 C&P Exam. He reported feeling pain and "pins and needles" going down both sides of the upper extremities, with the right worse than the left. The examiner noted decreased sensation to the shoulder area, as well as mild intermittent pain and paresthesias and/or dysesthesias. There were no other signs of symptoms of radiculopathy, and the examiner opined that the Veteran suffered from mild radiculopathy involving the C5/C6 nerve roots, otherwise known as the upper radicular group.

In September 2018, Dr. N.S. provided an opinion with respect to the severity of the Veteran's radiculopathy. He diagnosed incomplete paralysis of the median nerve that was mild in nature. The Veteran reported occasional numbness and weakness shooting down along the median nerve bilaterally. Dr. N.S. noted flare-ups of radiculopathy occurring twice per week and lasting for four hours, and interfering with the Veteran's ability to drive, lift, carry, or sit for a long period of time. 

The Veteran's primary complaints with respect to radiculopathy are pain, numbness, and tingling radiating down the arms to the hands. January 2021 Hearing Transcript. Regarding impairment of motor functions, the Veteran described sometimes feeling like he has to "force" his hand open. Id. He denied trophic changes and there is no indication of loss of reflexes, atrophy, or complete paralysis of any nerve.

Based on the above, the Board finds that the disability primarily manifests in pain and sensory disturbances. The Board also finds that the most probative evidence of record is against a finding that the disability manifests in impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In that regard, while not dispositive, it is probative that both the February 2016 VA examiner and Dr. N.S. opined that the Veteran experienced mild incomplete paralysis. Additionally, while Dr. N.S. indicated that the Veteran's impairment was of the median nerve, rather than the upper radicular group, the currently-assigned ratings pursuant to the criteria for rating the upper radicular group are more favorable; mild incomplete paralysis of the median nerve merits only a 10 percent rating for either the major or minor extremity. See 38 C.F.R. § 4.124a, Diagnostic Code 8515.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. 

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings in excess of 20 percent for bilateral upper extremity radiculopathy. As the evidence of record persuasively weighs against a rating in excess of 20 percent for either extremity, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776.

As with the Veteran's spinal disabilities, he testified that his radiculopathy began to worsen in approximately June 2019, around the time he submitted statements describing an increase in his symptoms. See June 2019 VA 21-4138. While he has been awarded an increased rating for radiculopathy from the date of the statement, he testified that the disability has continued to worsen. January 2021 Hearing Transcript. Accordingly, as discussed below, the Board is remanding the matters of entitlement to increased ratings from the date of the statement in order to obtain more evidence regarding the current nature of the Veteran's disabilities.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability from June 24, 2019.

2. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability from June 24, 2019.

3. Entitlement to an initial disability rating in excess of 30 percent for left upper extremity radiculopathy from June 24, 2019.

4. Entitlement to an initial disability rating in excess of 40 percent for right upper extremity radiculopathy from June 24, 2019.

The Veteran has asserted that his service-connected spine and radiculopathy disabilities have worsened since he was last examined in July 2019. Accordingly, the Board finds remand is warranted so that new VA examinations may be obtained to assess the current nature and severity of his disabilities.

Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should be obtained and associated with the claims file.

The matters are REMANDED for the following actions:

1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records.

2. After records development is completed, schedule the Veteran for a VA spine examination to determine the current symptoms, level of severity, and functional impairment associated with his cervical and lumbar spine disabilities. The claims file should be reviewed by the examiner. 

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate cervical or lumbar range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions, forward flexion of the cervical spine would be limited to 15 degrees or less, forward flexion of the lumbar spine would be limited to 60 degrees or less, the combined range of motion of the thoracolumbar spine would be limited to 120 degrees or less, or muscle spasms or guarding would result in abnormal gait or spinal contour; if motion would be greater than this, that should be stated. 

If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 

3. After records development is completed, schedule the Veteran for a VA peripheral nerve examination to determine the current symptoms, level of severity, and functional impairment associated with his bilateral upper extremity radiculopathy. The claims file should be reviewed by the examiner. 

The examiner should specifically comment on which nerves are impaired. 

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. D. Bruce, 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.