Citation Nr: A25005294
Decision Date: 01/22/25	Archive Date: 01/22/25

DOCKET NO. 230404-337359
DATE: January 22, 2025

ORDER

Entitlement to an initial evaluation of 40 percent, but no higher, for right upper extremity radiculopathy of the upper radicular group for the period on appeal prior to October 28, 2022, is granted.

Entitlement to an initial evaluation of 30 percent, but no higher, for left upper extremity radiculopathy of the upper radicular group for the period on appeal prior to October 28, 2022, is granted.

Entitlement to an initial evaluation in excess of 10 percent for intervertebral disc syndrome of the cervical spine with spinal fusion (IVDS) (previously evaluated as cervical fusion) prior to October 28, 2022, and in excess of 20 percent thereafter for the period on appeal is denied. 

FINDINGS OF FACT

1. For the period on appeal the Veteran's right upper extremity radiculopathy has been productive of symptoms consistent with moderate incomplete paralysis of the upper radicular group for the major extremity, but he does not have severe incomplete paralysis or complete paralysis. 

2. For the period on appeal the Veteran's left upper extremity radiculopathy has been productive of symptoms consistent with moderate incomplete paralysis of the upper radicular group for the minor extremity, but he does not have severe incomplete paralysis or complete paralysis. 

3. Prior to October 28, 2022, the Veteran did not have 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

4. Since October 28, 2022, the Veteran did not have forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial evaluation of 40 percent, but no higher, for the period on appeal for right upper extremity radiculopathy of the upper radicular group have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8510. 

2. The criteria for entitlement to an initial evaluation of 30 percent, but no higher, for the period on appeal, for left upper extremity radiculopathy of the upper radicular group have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8510. 

3. The criteria for entitlement to an initial evaluation in excess of 10 percent for intervertebral disc syndrome of the cervical spine with spinal fusion prior to October 28, 2022, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

4. The criteria for entitlement to an initial evaluation in excess of 20 percent for intervertebral disc syndrome of the cervical spine with spinal fusion from October 28, 2022, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from March 1988 through December 1991.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2022 rating decision. 

In May 2020 the Veteran filed a VA Form 21-526EZ, Fully Developed Claim for his neck disorder. Service connection was granted in July 2021 for cervical spinal fusion, left upper extremity radiculopathy, and right upper extremity radiculopathy with an effective date of May 29, 2020. 

In October 2022, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim for a higher rating for his cervical spinal fusion, left upper extremity radiculopathy, and right upper extremity radiculopathy, and the AOJ issued a subsequent rating decision increasing the disability rating to 20 percent for cervical spinal fusion, 30 percent for left upper extremity radiculopathy, and 40 percent for right upper extremity radiculopathy, in November 2022 with an effective date of October 28, 2022. 

In December 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher Level Review (HLR) and requested review of the November 2022 rating decision. In December 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2022 decision. 

In the April 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301.

If evidence was submitted during the period after the AOJ issued the November 2022 decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like the VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision addressing the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Increased Evaluation

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d. 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

As a preliminary matter, the Veteran's representative, in his April 2023 Appellate Brief, asserted the Veteran is entitled to an earlier effective date of May 29, 2020 for the 20 percent evaluation for IVDS, the 40 percent evaluation for right upper extremity radiculopathy of the upper radicular group, and the 30 percent evaluation for left upper extremity radiculopathy of the upper radicular group. The Board finds that notwithstanding the use of the term "effective date" in the context of requesting higher ratings for the service-connected disabilities on appeal, the Veteran has not actually raised an additional issue of entitlement to an earlier effective date. Although the Veteran's representative used the term "effective date," the characterization of the appeal as one of an earlier effective date does not convert it into an actual effective date appeal, as opposed to simply an appeal for a higher rating.  Rather, the Veteran appears to be seeking entitlement to a higher staged rating.  Thus, the Veteran's claim has been recharacterized accordingly. 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59.

Even when the background factors listed in 38 C.F.R. §§ 4.40, 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which the motion is limited, pursuant to 38 C.F.R. § 4.71a; 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 criteria.").

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. In this case, the evidence shows that the Veteran is right hand dominant. See April 2021 VA Examination. The Veteran has not contended otherwise; therefore, the right upper extremity is considered major for rating purposes. 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

Radiculopathy 

In this case the Veteran's right upper extremity radiculopathy of the upper radicular group associated with intervertebral disc syndrome with spinal fusion is currently assigned a 20 percent evaluation from May 29, 2020, and a 40 percent evaluation after October 28, 2022, pursuant to 38 C.F.R. 4.124a, Diagnostic Code 8510. The Veteran's left upper extremity radiculopathy of the upper radicular group associated with intervertebral disc syndrome with spinal fusion is currently assigned a 20 percent evaluation from May 29, 2020, and a 30 percent evaluation after October 28, 2022, pursuant to 38 C.F.R. 4.124a, Diagnostic Code 8510.

The Veteran's bilateral upper extremity radiculopathy is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8510, which distinguishes between the major and minor extremities. 39 C.F.R. § 4.69. The record shows that the Veteran is right-handed; thus, his right upper extremity radiculopathy affects the major extremity, while his left upper extremity radiculopathy affects the minor extremity. 

Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis," with respect to peripheral nerve injuries, 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 level of the lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement and are combined with application of the bilateral factor for bilateral involvement. 

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis, not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. 

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. 

Under Diagnostic Code 8510, relevant to the major extremity, a 20 percent evaluation is assigned for mild incomplete paralysis of the upper radicular group of the major extremity; a 40 percent evaluation is assigned for moderate incomplete paralysis of the upper radicular group of the major extremity; a 50 percent evaluation is assigned for severe incomplete paralysis of the upper radicular group of the major extremity; and a maximum 70 percent evaluation is assigned for complete paralysis of the upper radicular group of the major extremity where all shoulder and elbow movements are lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. 

Under Diagnostic Code 8510, relevant to the minor extremity, a 20 percent evaluation is assigned for mild incomplete paralysis of the upper radicular group of the minor extremity; a 30 percent evaluation is assigned for moderate incomplete paralysis of the upper radicular group of the minor extremity; a 40 percent evaluation is assigned for severe incomplete paralysis of the upper radicular group of the minor extremity; and a maximum 60 percent evaluation is assigned for complete paralysis of the upper radicular group of the minor extremity where all shoulder and elbow movements are lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. 

Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Therefore, the Board finds it appropriate to utilize definitions provided by a general-purpose dictionary. Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (in the absence of an express definition, words are given their ordinary meaning). Mild is generally defined as not being or involving what is extreme, or not severe. Moderate is generally defined as tending toward the mean or average amount. Severe is generally defined as of a great degree. Merriam-Webster's Collegiate Dictionary (accessed online January 2025). 

Right Upper Extremity Radiculopathy 

The Veteran seeks a higher evaluation for his right upper extremity radiculopathy of the upper radicular group. In this case the Veteran's right upper extremity radiculopathy of the upper radicular group associated with intervertebral disc syndrome with spinal fusion is currently assigned a 20 percent evaluation from May 29, 2020, and a 40 percent evaluation after October 28, 2022, pursuant to 38 C.F.R. 4.124a, Diagnostic Code 8510.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an initial evaluation of 40 percent, but no higher, for his right upper extremity radiculopathy of the upper radicular group for the entire period on appeal. 

During the April 2021 VA medical examination, the Veteran was diagnosed with cervical radiculopathy. The examiner noted the Veteran's symptoms included moderate constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. During muscle strength testing the Veteran had active movement against some resistance (4/5) for the right extremity in all categories (elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction) with no muscle atrophy. The Veteran had normal deep tendon reflexes, and normal sensation to light touch during dermatome testing. The Veteran had no other neurologic abnormalities or findings such as bowel or bladder problems or pathologic reflexes. See April 2021 VA Medical Examination. 

In the November 2022 VA medical examination, the examiner noted the Veteran had symptoms of moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the right upper extremity.  During muscle strength testing the Veteran had active movement against some resistance (4/5) for the right extremity in all categories (elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction) with no muscle atrophy. The Veteran had normal deep tendon reflexes, and normal sensation to light touch during dermatome testing. The Veteran had no other neurologic abnormalities or findings such as bowel or bladder problems or pathologic reflexes. The examiner also found the Veteran had strength reduction due to radiculopathy in the right extremity, as well as weakness and radiculopathy in both arms, and that the Veteran reported pain in his neck and arms required him to leave work early. The Veteran stated he had missed two to four weeks of work over the course of 12 months due to his cervical disability. See November 2022 VA Medical Examination. 

Based on the foregoing, the Board finds that the Veteran's right upper extremity radiculopathy more nearly approximates moderately severe incomplete paralysis. The evidence clearly shows he had moderate pain during both VA medical examinations as well as sensory impairment, including numbness in his right upper extremity. The Veteran was also noted to have decreased muscle strength. Diagnostic Code 8510 clearly indicates that moderate symptoms of radiculopathy for the major extremity warrant a 40 percent evaluation. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to an initial evaluation of 40 percent is warranted. 

The Board has also considered whether the Veteran is entitled to an evaluation in excess of 40 percent at any point during the appeal period. However, the evidence does not show that he has severe incomplete paralysis or complete paralysis. In fact, on two separate occasions with two different medical examiners, it was noted the Veteran had only moderate severity of right upper extremity radiculopathy, which is in line with the level of impairment contemplated in the rating criteria for the 40 percent evaluation now assigned. The evidence also does not document complete paralysis, or muscle atrophy.  Rather, the evidence shows that the Veteran maintained active movement against some resistance and that reflex and sensory testing was normal. 

Moreover, to the extent that the Veteran has symptoms and impairment resulting from his neck disability, such as pain and functional limitations, he is separately service-connected for IVDS, and currently assigned a 20 percent evaluation pursuant to 38 C.F.R. 4.71a, Diagnostic Code 5243.

In summary, the Board concludes that the evidence supports the assignment of an initial 40 percent evaluation for right upper extremity radiculopathy for the period on appeal prior to October 28, 2022, and the claim is granted to that extent. The Board also finds that the evidence persuasively weighs against a higher evaluation in excess of 40 percent for the period on appeal.  As such, the claim is otherwise denied.

The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Left Upper Extremity Radiculopathy 

The Veteran seeks a higher evaluation for his left upper extremity radiculopathy of the upper radicular group. In this case the Veteran's left upper extremity radiculopathy of the upper radicular group associated with intervertebral disc syndrome with spinal fusion is currently assigned a 20 percent evaluation from May 29, 2020, and a 30 percent evaluation after October 28, 2022, pursuant to 38 C.F.R. 4.124a, Diagnostic Code 8510.

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to an initial evaluation of 30 percent, but no higher, for his left upper extremity radiculopathy of the upper radicular group for the entire period on appeal. 

In the April 2021 VA medical examination, the Veteran was diagnosed with cervical radiculopathy. The examiner noted the Veteran's symptoms included moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left upper extremity. During muscle strength testing the Veteran had active movement against some resistance (4/5) for the left extremity in all categories (elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction) with no muscle atrophy. The Veteran had normal deep tendon reflexes, and normal sensation to light touch during dermatome testing. The Veteran had no other neurologic abnormalities or findings such as bowel or bladder problems or pathologic reflexes. See April 2021 VA Medical Examination. 

In the November 2022 VA medical examination, the examiner noted the Veteran had symptoms of moderate constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremity. During muscle strength testing the Veteran had active movement against some resistance (4/5) for the left extremity in all categories (elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction) with no muscle atrophy. The Veteran had normal deep tendon reflexes, and decreased sensation to light touch of the shoulder area during dermatome testing. The Veteran had no other neurologic abnormalities or findings such as bowel or bladder problems or pathologic reflexes. The examiner also found the Veteran had strength reduction due to radiculopathy in the left extremity, as well as weakness and radiculopathy in both arms, and that the Veteran had pain in his neck and arms requiring him to leave work early. The Veteran stated he had missed two to four weeks of work over 12 months due to his cervical disability. See November 2022 VA Medical Examination. 

Based on the foregoing, the Board finds that the Veteran's left upper extremity radiculopathy more nearly approximates moderately severe incomplete paralysis for the period on appeal. The evidence clearly shows he had moderate pain during both VA medical examinations as well as sensory impairment, including numbness in his left upper extremity. The Veteran was also noted to have decreased muscle strength. Diagnostic Code 8510 clearly indicates that moderate symptoms of radiculopathy for the minor extremity warrant a 30 percent evaluation. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that entitlement to an initial evaluation of 30 percent is warranted for the entire period on appeal. 

The Board has also considered whether the Veteran is entitled to an evaluation in excess of 30 percent at any point during the appeal period. However, the evidence does not show that he has severe incomplete paralysis or complete paralysis. In fact, on two separate occasions with two different medical examiners, it was noted the Veteran had only moderate severity of the left upper extremity radiculopathy, which is in line with the level of impairment contemplated in the rating criteria for the 30 percent evaluation now assigned. The evidence also does not document complete paralysis, or muscle atrophy.  Rather, the evidence shows that despite experiencing a reduction in strength and some weakness, the Veteran was still able to maintain active movement against some resistance. In addition, his reflexes were normal, and he still had normal sensation to light touch in the forearm and hand and fingers. 

Moreover, to the extent that the Veteran had symptoms and impairment resulting from his neck disability, such as pain and functional limitations, he is separately service-connected for IVDS, and currently assigned a 20 percent evaluation pursuant to 38 C.F.R. 4.71a, Diagnostic Code 5243.

In summary, the Board concludes that the evidence supports the assignment of an initial 30 percent evaluation for left upper extremity radiculopathy for the period on appeal prior to October 28, 2022, and the claim is granted to that extent. The Board also finds that the evidence persuasively weighs against a higher evaluation in excess of 30 percent for the period on appeal.  As such, the claim is otherwise denied.

The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Intervertebral Disc Syndrome

In this case, the Veteran's IVDS is currently assigned a 10 percent evaluation prior to October 28, 2022, and a 20 percent evaluation after October 28, 2022, pursuant to 38 C.F.R. 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 indicates that intervertebral disc syndrome should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 

The rating criteria for the musculoskeletal system were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of an appeal, the version most favorable to the claimant applies, absent congressional intent to the contrary. The amended rating criteria can only be applied for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  In this case, the relevant rating criteria for the General Rating Formula and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in 38 C.F.R. § 4.71a remain unchanged. The changes instruct that Diagnostic Code 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and for or all other disc disease diagnoses, Diagnostic Code 5242 should be assigned.

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is 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 facture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is 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 evaluation is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted when there is unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 

For VA compensation purposes, normal range of motion for the cervical spine is forward flexion from zero to 45 degrees, extension from zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined normal range of motion for the cervical spine is 340 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). 

Under the pre-amendment version of Diagnostic Code 5010, traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003. Under the pre-amendment version of Diagnostic Code 5003, the severity of degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion of the specific joint(s) is present, but noncompensable under the appropriate diagnostic code(s), a 10 percent evaluation is for application for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the cervical vertebrae, dorsal vertebrae, and lumbar vertebrae are groups of minor joints. 38 C.F.R. § 4.45(f).

The post-amendment version of Diagnostic Code 5003 applies only to degenerative arthritis, other than posttraumatic. The post-amendment version of Diagnostic Code 5010 now states that traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.

Historically, the Board notes the Veteran was initially service-connected for cervical spinal fusion, which was later recharacterized as intervertebral disc syndrome of the cervical spine with spinal fusion.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes the Veteran is not entitled to an increased rating for his service-connected IVDS during the period on appeal. 

Initially, the Board notes there is no evidence of record that the Veteran had forward flexion of the cervical spine greater than 15 degrees but less 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 prior to October 28, 2022. In this regard, during the April 2021 VA medical examination the Veteran had forward flexion of 40 degrees during active range of motion testing, which was the same for passive range of motion testing. The Veteran did have additional loss of function after repetitive use, with forward flexion limited to 35 degrees. The Veteran's combined range of motion of the cervical spine was 230 degrees, which decreased to 200 degrees after repetitive use range of motion testing. The Veteran was not found to have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, the Veteran was not shown to have favorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. Pain was noted during active range of motion during right lateral rotation and left lateral rotation. Functional loss occurred after repeated use over time testing due to pain. See April 2021 VA Medical Examination. 

Additionally, although the Veteran reported flareups occurring once or twice a week and lasting anywhere from one to seven days, the examiner estimated that the Veteran's range of motion would be to 35 degrees during a flare-up.

The Board also finds there is no evidence of record of forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine after October 28, 2022. In this regard the November 2022 VA medical examination found the Veteran had forward flexion of the cervical spine to 35 degrees on active range of motion and 30 degrees of forward flexion after repetitive use. Passive range of motion testing was not conducted due to it being medically contraindicated. The Veteran was not found to have favorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. The Veteran did not report flare-ups at the time of the November 2022 medical examination. The Veteran was noted to have functional loss due to limited range of motion as well as pain, notably tenderness of the cervical spine. See November 2022 VA Medical Examination.

In addition, the Board notes that the evidence does not show that the Veteran has ankylosis of the cervical spine or the functional equivalent thereof.  The April 2021 and November 2022 VA examiners specifically noted there was no ankylosis.  Moreover, based on the aforementioned range of motion findings, the Veteran's cervical spine is not fixated or immobile. 

Moreover, regarding Diagnostic Code 5003, the Board notes that the currently assigned evaluation contemplates the Veteran's painful and limited motion. The assignment of a separate evaluation under Diagnostic Code 5003 would constitute pyramiding, and therefore, is not warranted.

The examiners also found the Veteran did not have incapacitating episodes having a duration of at least two weeks but less than four weeks during the past twelve months; of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; or incapacitating episodes having a total duration of at least six weeks during the past twelve months. See April 2021 and November 2022 VA Medical Examination.   As previously noted, 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. There are no treatment records documenting a prescription of bed rest of the Veteran's cervical spine disorder. Therefore, the Board finds that the Veteran is not entitled to an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

For these reasons, the Board finds that the Veteran is not entitled to an increased rating under Diagnostic Code 5243 for the period on appeal.

The Board further finds that a separate evaluation is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected cervical spine disability and left and right upper extremity radiculopathy. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Indeed, the VA examiners confirmed that the Veteran did not have such additional disability in their reports.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the findings in DeLuca. However, an increased evaluation for IVDS is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran's IVDS symptoms are supported by pathology consistent with the assigned 10 percent evaluation for the period prior to October 28, 2020, and the 20 percent evaluation thereafter and no higher. In this regard, the Board observes that the Veteran has complained of pain in his cervical spine. However, the effect of the pain on the Veteran's cervical spine is contemplated with the assigned 10 and 20 percent evaluations, and no higher. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatiguability, or incoordination to the degree that would warrant increased evaluations. During the April 2021 VA medical examination, the examiner noted the Veteran had pain during repetitive use testing, which did cause more limited range of motion, as well as limited functional ability during flare-ups.  However, even during flare-ups or upon repetitive use, the Veteran still exhibited forward flexion to 35 degrees.  Similarly, during the November 2022 VA medical examination, repeated use over time testing was not completed due to the examiner finding that evidence from the Veteran suggested there would be pain, fatiguability, weakness, and lack of endurance. However, even with these considerations, the estimated range of motion for forward flexion was 30 degrees which is consistent with the evaluation of 20 percent that has already been assigned.  

Thus, even taking into account the Veteran's reports, repetitive use, and flare-ups, the evidence does not show that he more nearly approximates the criteria for a higher evaluation. Indeed, he has still maintained a range of motion greater than required by the rating criteria for an increased evaluation. Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Based on the foregoing, the Board finds the weight of the evidence is against an increased initial rating for the Veteran's service-connected IVDS. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. 

 

 

J. SAIKH

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Anna-Liisa Davis

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.