Citation Nr: 22015744 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-54 948 DATE: March 18, 2022 ORDER Entitlement to an initial disability rating greater than 20 percent for cervical spondylosis with canal stenosis (cervical spine condition) is denied. Entitlement to an initial disability rating greater than 20 percent for left upper extremity radiculopathy prior to January 8, 2022 and 30 percent thereafter is denied. Entitlement to an initial disability rating greater than 40 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran's cervical spine condition was manifested by symptoms of functional loss equivalent to forward flexion greater than 15 degrees but not greater than 30 degrees; it was not manifested by forward flexion of 15 degrees or less or ankylosis. 2. Prior to January 8, 2022, the Veteran's left upper extremity radiculopathy was manifested by mild incomplete paralysis; it was not manifested by moderate or severe incomplete paralysis, or complete paralysis. 3. From January 8, 2022, the Veteran's right and left upper extremity radiculopathy were manifested by moderate incomplete paralysis; they were not manifested by severe incomplete paralysis or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 20 percent for a cervical spine condition are not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5242-5239 (2020)(2021). 2. The criteria for an initial disability rating greater than 20 percent for left upper extremity radiculopathy prior to January 8, 2022 and 30 percent thereafter are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8513. 3. The criteria for an initial disability rating greater than 40 percent for right upper extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1955 to September 1975. He appealed a September 2020 Board of Veterans' Appeals (Board) decision denying entitlement to an initial rating greater than 10 percent for his cervical spine condition. In July 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated the Board's September 2020 decision, in part, and remanded the issue back to the Board for further development. Most recently, in November 2021, the Board remanded the issue to afford the Veteran an adequate examination in compliance with the July 2021 JMPR. Subsequent to this remand, the AOJ increased the Veteran's initial rating for his cervical spine condition to 20 percent, and granted service connection for related right and left upper extremity radiculopathy. The appeal is now back before the Board. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, 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. 38 C.F.R. § 4.7. Cervical Spine As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Here, however, the Veteran's lumbar spine condition is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) which did not change under the revised regulations. As such, the rating criteria for the Veteran's cervical spine condition is unchanged and the Board will proceed with adjudication. Under 38 C.F.R. § 4.71a, all spinal disabilities are evaluated under the General Formula. If the Veteran has Intervertebral Disc Syndrome (IVDS), he may also be evaluated under the IVDS Formula; however, there is no record the Veteran has IVDS, so he will be evaluated under the General Formula. The Veteran contends his service-connected cervical spine condition is more severe than his initial rating of 20 percent under 38 C.F.R. § 4.71a, DCs 5242-5239. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, DC 5242 provides a rating for degenerative arthritis of the spine; whereas, DC 5239 provides rating for spondylolisthesis, both of which are rated under the General Formula. The pertinent criteria under the General Formula are as follows: 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. See 38 C.F.R. § 4.71a General Formula. 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. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. And a 100 percent rating is warranted for unfavorably ankylosis of the entire spine. Id. Finally, ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Id. at note (5) (defining ankylosis as fixation of a joint in a particular position). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This includes any functional loss resulting in the equivalent of ankylosis during flareups or with repeated use over time. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran is not entitled to an initial rating greater than 20 percent unless his cervical spine exhibits forward flexion limited to 15 degrees or less, or if his entire cervical spine is ankylosed, or fixated in one position and unable to move to any degree. Of record are three VA examinations. In July 2013, the Veteran's forward flexion was limited to 30 degrees with pain on all movement. See July 2013 VA examination report. In February 2020, a VA examiner recorded his forward flexion to 45 degrees. In January 2022, a VA examiner found the Veteran's forward flexion limited to 20 degrees with severely restricted movement limited to a combined range of motion of 50 degrees. These examinations reflect that the Veteran could move his neck greater than 15 degrees and it was not ankylosed. Importantly, no VA examiner found ankylosis and the Veteran does not suggest otherwise. See July 2013, February 2020, and January 2022 VA examination reports. Additionally, the Veteran's private treatment records support that his cervical spine was not ankylosed or limited to 15 degrees or less. For example, May 2012 Dr. D.A. treatment records noted the Veteran had "some decreased range of motion in his neck" upon examination. Similarly, October 2012 Spine Institute of Louisiana records noted the Veteran's "range of motion in neck [was] fair." Next, the Board must consider any additional functional loss due to pain, weakness, fatigability, or incoordination during flareups or with repeated use over time. See DeLuca, 8 Vet. App. at 204-07. At the July 2013 VA examination, the Veteran did not report suffering from flareups and had no decrease in range of motion after repetitive use, but the examiner noted the Veteran experienced additional functional loss with repetitive use, including increased pain and less movement than normal. At the February 2020 VA examination, the Veteran reported weekly flareups lasting a few days with pain from "4 to 7 out of 10" that caused decreased movement and stiffness, making it harder to turn his neck. The Veteran was unsure what caused his flareups, but stated his symptoms increased after prolonged driving or neck movement; he noted that his additional functional loss included increased pain and "limited turning of neck." See February 2020 VA examination report. At the examination, the Veteran did not have additional loss of movement after repetition and the physician stated the Veteran did not experience additional functional loss due to pain, weakness, fatiguability, or incoordination with repeated use over time or during flareups. The July 2021 JMPR declared that the February 2020 VA examiner did not "note any additional functional limitation resulting from flareups, including in terms of any additional degrees of limitation of motion" despite the Veteran reporting and describing flareups. The Veteran indeed described flareups and his functional loss as increased pain with decreased movement and turning of his neck; however, the VA examiner opined that the Veteran did not suffer from additional limitation of motion. Id. The Veteran stated it was harder for him to turn his neck after prolonged use or during flareups, he did not state his range of motion decreased and the examination report expressly states the Veteran did not report decreased range of motion during flareups while at the examination. Id. Additionally, the January 2022 VA examiner also found the Veteran did not have any additional limitation of motion during flareups or with repeated use over time. At this examination, the Veteran described nightly flareups lasting one hour that included moderate sharp pain and soreness when "trying to get comfortable for sleep." See January 2022 VA examination report. The Veteran also reported his flareups caused "difficulties with overhead tasks and driving, and he described his functional loss after repeated use over time as the inability to turn his head "all of the way" and find a comfortable sleep position. Id. The VA examiner considered the Veteran's statements and his ranges of motion at the examination and concluded the Veteran did not suffer from functional loss due to additional pain, fatiguability, weakness, lack of endurance, or incoordination during flareups or with repeated use over time. The Board finds the Veteran's statements and VA examinations probative regarding the Veteran's symptoms during flareups and with repeated use over time. Additionally, there is no other evidence of record that the Veteran suffers additional loss of motion during flareups or with repeated use that would reflect limited forward flexion to 15 degrees or less or ankylosis. As such, the evidence of record weighs against the Veteran's claim and the Board denies entitlement to an initial disability rating greater than 20 percent for his cervical spine condition. Upper Extremity Radiculopathy Pursuant to Note (1) of the General Formula, VA is also required to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). This includes bowel or bladder impairment and radiculopathy. During the appeal period, the Veteran did not report any bowel or bladder impairment; however, the AOJ granted entitlement to service connection for left and right upper extremity radiculopathy as this was related to his cervical spine condition. See January 2022 rating decision. As such, these must also be evaluated. The Veteran's left upper extremity radiculopathy is currently rated at 20 percent disabling prior to January 8, 2022 and 30 percent thereafter, while his right upper extremity radiculopathy rated at 40 percent disabling. Id. Each are rated under 38 C.F.R. § 4.124a, DC 8513. Under DC 8513, there are different rating schedules depending on whether the arm involved is major (dominant) or minor (non-dominant). The record reflects the Veteran is right-hand dominant. See February 2020 VA examination report. For the major (dominant) arm, a 20 percent disability rating is warranted for mild incomplete paralysis. 38 C.F.R. § 4.124a, DC 8513. A 40 percent disability rating is warranted for moderate incomplete paralysis and a 70 percent disability rating is warranted for severe incomplete paralysis. Id. Finally, a 90 percent rating is warranted for complete paralysis. Id. For the minor (non-dominant) arm, a 20 percent disability rating is warranted for mild incomplete paralysis a 30 percent rating is warranted for moderate incomplete paralysis, and 60 percent rating is warranted for severe incomplete paralysis. Id. Finally, an 80 percent disability rating is warranted for complete paralysis. Id. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. 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. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. However, 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). For the left upper extremity, the minor arm, the Veteran reported mild intermittent pain, paresthesias and numbness at the July 2013 VA examination. The Veteran's records reflect similar mild symptoms. See May 2012 Dr. D.A. treatment records; October 2012 Spine Institute of Louisiana records. At the February 2020 VA examination, the Veteran denied any radicular symptoms of pain or numbness, his reflexes were normal, and sensory testing reflected normal senses in the left upper extremity. These symptoms prior to January 8, 2022 more closely reflect mild incomplete paralysis as the Veteran's muscular, sensory, and reflex testing reflected normal results without indication of radicular involvement. The Veteran did, however, report mild pain, paresthesias, and numbness at one VA examination and his treatment records reflect radicular involvement; however, the Veteran's symptoms overall reflect mild symptoms as there is no indication the Veteran suffered more severe symptoms prior to January 8, 2022. However, at the January 8, 2022 VA examination, the Veteran reported experiencing "radiating pain, numbness, and tingling" in his left upper extremity and his muscle strength had reduced to four out of five and was active against some resistance. Again, the Veteran's reflexes and senses were tested with normal results. The VA examiner noted the Veteran experienced intermittent mild pain with mild paresthesias and numbness. These symptoms do not reflect severe incomplete or complete paralysis and there is no other evidence of record that suggests he suffers from more severe symptoms; thus, the Veteran is not entitled to a rating greater than 30 percent from January 8, 2022. For the right upper extremity, the major arm, the medical records and the Veteran's statements do not reflect right upper extremity radicular symptoms until the January 2022 VA examination. There, the Veteran reported experiencing "radiating pain, numbness, and tingling" in his right upper extremity and his muscle strength had reduced to four out of five. Again, the Veteran's reflexes and senses were tested with normal results. The VA examiner noted the Veteran experienced intermittent mild pain with mild paresthesias and numbness. These symptoms do not reflect severe incomplete or complete paralysis and there is no other evidence of record that suggests he suffers from more severe symptoms. As such, the Board finds the evidence of record does not reflect the Veteran is entitled to a rating greater than 40 percent for his right upper extremity radiculopathy. Additionally, the Board denies a rating greater than 20 percent for left upper extremity radiculopathy prior to January 8, 2022 and 30 percent thereafter. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.