Citation Nr: 22014456 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 20-06 052 DATE: March 14, 2022 ORDER Entitlement to a disability rating of 20 percent for degenerative disc and joint disease of the cervical spine (neck disability) beginning June 14, 2016, is granted. Entitlement to a separate rating of 20 percent for right upper extremity radiculopathy is granted. Entitlement to a separate rating of 10 percent for right lower extremity radiculopathy is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for a neck disability is remanded. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease with degenerative joint disease of the thoracolumbar spine (low back disability) is remanded. FINDINGS OF FACT 1. Beginning June 14, 2016, when considering the Veteran's pain and corresponding functional loss, including during flare-ups, the weight of the competent and probative evidence demonstrates that the limitation of motion of the cervical spine is 30 degrees. 2. The evidence demonstrates that the Veteran has mild incomplete radiculopathy of the right upper extremity. 3. The evidence demonstrates that the Veteran has mild incomplete radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent for degenerative disc and joint disease of the cervical spine beginning June 14, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a separate rating of 20 percent for right upper extremity radiculopathy have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, DC 8511. 3. The criteria for entitlement to a separate rating of 10 percent for right lower extremity radiculopathy have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1992 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his wife and a friend presented sworn testimony at a hearing held before the undersigned Veterans Law Judge in January 2022. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disability on appeal precludes substantially gainful employment. See Hearing Testimony, January 2022. Therefore, the issue of entitlement to a TDIU is not before the Board. 1. Entitlement to a disability rating of 20 percent for degenerative disc and joint disease of the cervical spine beginning June 14, 2016. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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. Relevant to the analysis herein, the criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. An "incapacitating episode" is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome with arthritis. Diagnostic Code 5243 for intervertebral disc syndrome is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5244 for paraplegia and quadriplegia was also added. The Veteran submitted a claim for an increased rating for his neck disability in August 2016, stating that his disability has worsened. During the January 2022 hearing, the Veteran testified that his neck problems impact his sleep, has scheduled upcoming treatment, MRIs, and surgery. He stated that he has numbness in his upper and lower extremities and recurrent headaches. The Veteran reported that he is currently on light duty, pushes through the pain, and has not taken much time off from work. He stated that he takes Aleve, does not lie down to treat his headaches, but he is limited because he cannot perform some physical activities and does not move when he gets home from work. The Veteran also stated that the pain makes him irritable. See also Statement in Support of Claim, August 2016. At the January 2017 VA examination, the Veteran reported continued chiropractic treatment for his neck twice a week, persistent popping sensation in his neck, numbness in the left upper extremity, and flare ups a few times a week. In the January 2018 notice of disagreement, the Veteran asserted that the January 2017 VA examination was inadequate as it only lasted a few minutes and did not align with the Veteran's other medical records. See also VA Form 9, February 2020. At the November 2019 VA examination, the Veteran reported that his neck pain and extremity numbness has worsened, and that his neck pain is constant with recurring flare ups. The Veteran's range of motion was recorded at 30 degrees for forward flexion. After considering the Veteran's increased functional loss during flare ups and with repeated use over time, as well as his use of pain medication, the Board finds that the Veteran's neck disability has more nearly approximated forward flexion of the cervical spine to no more than 30 degrees throughout the appeal period. Affording the Veteran the benefit of the doubt, the Board finds that a rating of 20 percent for his neck disability is warranted beginning August 16, 2016. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). A rating in excess of 20 percent for the Veteran's neck disability will be addressed in the remand portion of this decision. 2. Entitlement to a separate rating of 20 percent for right upper extremity radiculopathy. 3. Entitlement to a separate rating of 10 percent for right lower extremity radiculopathy. At the outset, the Board notes that the Veteran does not have a separate claim with regard to right upper extremity radiculopathy and right lower extremity radiculopathy. However, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement as to the radiculopathy ratings. Here, the Veteran has a claim for a higher rating for a cervical spine disability and a low back disability. The Veteran is also service connected for left upper extremity radiculopathy associated with his neck disability at 20 percent disabling, effective June 14, 2016. Therefore, the Board may adjudicate the Veteran's claim of entitlement to an increased rating for right upper extremity radiculopathy and right lower extremity radiculopathy without a notice of disagreement as ruled by the Court in Chavis. See also 38 C.F.R. § 4.71a, DCs 5235-5243, at Note (1). As noted above, the Veteran testified that he experiences numbness in his upper and lower extremities. See Hearing Testimony, January 2022. The Board finds that the Veteran is competent to report that he experiences radiating neck and back pain. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007)). Medical treatment records show complaints, treatment, and diagnoses for right upper extremity radiculopathy and right lower extremity radiculopathy. See Medical Treatment Records, May 2017, and December 2021; VA Examination, January 2017 and November 2019. Given the evidence of record, the Board finds that a separate rating for the Veteran's right upper extremity radiculopathy and right lower extremity radiculopathy is warranted. Under Diagnostic Code 8511, which pertains to the middle radicular group, a 20 percent rating is warranted for mild incomplete paralysis of the major or minor extremity. A 40 percent rating is warranted for moderate incomplete paralysis of the major extremity and a 30 percent rating for moderate incomplete paralysis of the minor extremity. A 50 percent rating is warranted for severe incomplete paralysis of the major extremity and a 40 percent rating for the minor extremity. A 70 percent rating is warranted for complete paralysis of the middle radicular group with adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. In December 2021, an examination was conducted by a private examiner. The examiner noted that the Veteran has moderate numbness in both upper extremities but does not have constant pain, intermittent pain, or paresthesias and/or dysesthesias. Additional medical records that discuss the Veteran's upper extremity radiculopathy do not note more than mild symptoms. As such, the Board finds a rating of 20 percent for the Veteran's right upper extremity radiculopathy is warranted. Regarding the Veteran's right lower extremity radiculopathy, sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis, or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. At the November 2019 VA examination, the Veteran reported pain into his right leg. Similarly, in a December 2021 medical record, the Veteran reported weakness/numbness over his lower legs. As such, the Board finds a rating of 10 percent for the Veteran's mild right lower extremity radiculopathy is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for degenerative disc and joint disease of the cervical spine is remanded. 2. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease with degenerative joint disease of the thoracolumbar spine is remanded. As noted above, the Veteran testified that his neck and back disabilities were getting worse. Further a December 2021 medical statement notes that the Veteran needs extensive cervical fusion in the very near future and is only capable of light duty at work. Given the Veteran's testimony and the December 2021 medical statement, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected neck and low back disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). In addition, in Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). In light of the hearing testimony, the Board finds that further information is necessary to properly rate, on a schedular basis, all of the manifestations of the Veteran's service-connected neck and low back disabilities, in this case, to include any psychiatric impairments, such as insomnia and irritability, headaches, radiculopathy, and/or manifestations of the Veteran's service-connected neck and low back disabilities. As such, on remand, a medical opinion should be obtained to determine any diagnoses the Veteran may have, to include any psychiatric impairments, such as insomnia and irritability, headaches, and radiculopathy, and whether they are proximately due to his service-connected neck and low back disabilities. Morgan; Bailey; Long. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service or post service symptomatology regarding his neck and low back disabilities and any related symptomatology, to include psychiatric impairment, headaches, and sleep disorders. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his neck and low back disabilities. All necessary tests should be performed. All findings should be reported in detail. The examiner should identify all neck and low back pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight -bearing and, with range of motion measurements of the opposite joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare up. If not, the examiner should ask the Veteran to describe the flare ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of this condition, to include radiculopathy and headaches. The examiner must opine as to whether it is at least as likely as not that the Veteran's headaches are related to the Veteran's service-connected neck disability. 4. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine if the Veteran suffers from psychiatric symptoms and/or a psychiatric disability that is due to or a manifestation of his neck and low back disabilities. The examiner must identify any psychiatric impairment found to be present, to include insomnia and irritability. The examiner must opine as to whether it is at least as likely as not that any psychiatric impairment, to include insomnia and irritability, are related to the Veteran's service-connected neck and low back disabilities or are otherwise related to the Veteran's period of service. The examiner must specifically acknowledge and discuss any reports by the Veteran that he suffers from psychiatric problems. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.