Citation Nr: 25006331 Decision Date: 05/09/25 Archive Date: 05/09/25 DOCKET NO. 16-05 795A DATE: May 9, 2025 ORDER Entitlement to 30 percent for degenerative disc disease with cervical strain ("neck disability") for the period prior to June 20, 2018, is granted. Entitlement to a separate evaluation for left upper extremity radiculopathy prior to January 7, 2016, is granted. Entitlement to a separate evaluation for right upper extremity radiculopathy prior to January 7, 2016, is granted. FINDINGS OF FACT 1. Prior to June 20, 2018, and after resolving reasonable doubt in his favor, the Veteran's neck disability manifested in functional loss equivalent to flexion limited to at least 15 degrees. 2. Throughout the appeal period, and resolving reasonable doubt in his favor, the Veteran complained of radiating pain into his left shoulder that is related to his service-connected neck disability. 3. Throughout the appeal period, and resolving reasonable doubt in his favor, the Veteran complained of radiating pain into his right shoulder that is related to his service-connected neck disability. CONCLUSIONS OF LAW 1. Prior to June 20, 2018, the criteria for entitlement to an evaluation of 30 percent, but no higher, for a neck disability have been met. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2018). 2. Throughout the appeal period, the criteria for a separate evaluation for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8510 (2018). 3. Throughout the appeal period, the criteria for a separate evaluation for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8510 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1985 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an August 2019 Board hearing; the transcript of the hearing is in the record. As explained in prior remands, the Board has remanded this matter several times. Then, in a November 2022 decision, the Board granted a 20 percent rating for the Veteran's neck disability prior to June 20, 2018, and denied a rating in excess of 20 percent. The Board also denied entitlement to a compensable rating for left or right upper extremity radiculopathy prior to June 20, 2018, and an excess of 20 percent for each thereafter. A November 2022 rating decision implemented the Board's grant and assigned a 20 percent rating for the Veteran's neck disability effective October 27, 2010. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In July 2018, the Court ordered a partial remand of the Board's November 2022 decision as to the issues noted in the Joint Motion for Partial Remand (JMPR) dated that same month. The JMPR specifically requested that the Court vacate only that portion of the Board's decision denying a rating greater than 20 percent for a neck disability prior to June 20, 2018, and remand it for readjudication. The Veteran specifically did not pursue the Board's denial of a rating in excess of 20 percent for his neck disability from June 20, 2018, and that issue was "considered abandoned." Therefore, the Court remanded the issue of entitlement to a rating greater than 20 percent for a neck disability prior to June 20, 2018, and dismissed the remaining issues. The Board notes that the issues addressed in the JMPR included whether a rating in excess of 20 percent was warranted for the Veteran's neck disability prior to June 20, 2018, and whether separate ratings for radiculopathy of each upper extremity was warranted prior to June 20, 2018. Therefore, even though the JMPR noted the issue as solely the rating for the neck disability, both the neck and the upper extremity radiculopathies were included. Following the Court's JMPR, the Board remanded these issues in September 2023. Thereafter, the RO granted separate 20 percent ratings for right and left upper extremity radiculopathy effective January 7, 2016. The case returned to the Board and in April 2024, the Board remanded these issues for additional development. Based on the language contained in the JMPR, the Board was only directed to determine whether separate ratings for radiculopathy of each upper extremity are warranted prior to June 20, 2018. Based on the RO's grant of service connection for right and left upper extremity radiculopathy effective January 7, 2016, and the specific directions included in the JMPR, the issues currently before the Board are whether the Veteran is entitled to a compensable rating for right and/or left upper extremity radiculopathy prior to January 7, 2016. 1. Entitlement to a rating in excess of 20 percent for a neck disability prior to June 20, 2018 Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion" (emphasis removed)). 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). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran's neck disability is currently rated 20 percent pursuant to Code 5243 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, 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 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...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. See id., General Formula, Note (5). As discussed in the Board's prior remand, the prior VA examinations and opinions are not in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the findings therein are given no probative weight. After considering the Veteran's reports during the December 2010 VA examination of severe pain that occurs three times per day, along with his report of exacerbation by physical activity and stress, as well as the VA examiner's inability to conduct range of motion testing in a reasonable manner, the Board will resolve reasonable doubt in the Veteran's favor and find that his neck disability has manifested in functional loss equivalent to flexion limited to at least 15 degrees due to excess fatigability, weakness, and pain. Thus, a 30 percent rating is warranted. To warrant a disability rating in excess of 30 percent, the evidence would need to show unfavorable ankylosis of the cervical spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis, even with considering the ameliorative effects of medication the Veteran took to alleviate his pain. See generally Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (Vet. App. Mar. 12, 2025). Accordingly, an increased rating in excess of 30 percent must be denied The Board notes that another remand pursuant to Correia, is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 30 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth or a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination in this matter is unnecessary. 2. Entitlement to a separate evaluation for left upper extremity radiculopathy prior to January 7, 2016 3. Entitlement to a separate evaluation for right upper extremity radiculopathy prior to January 7, 2016 Here, the Board finds that separate compensable evaluations are warranted for left and right upper extremity radiculopathy prior to January 7, 2016. 38 C.F.R. § 4.71a, Diagnostic Code 8510. During a private examination in October 2010, the Veteran reported pain in his left shoulder, which he described as aching, stabbing, and radiating into his left arm. On cervical spine examination, shoulder depressor testing was positive on both the left and the right. During his December 2010 VA examination, the Veteran reported severe neck pain that traveled into both shoulders. His cervical compression test was also positive. The Board has remanded this matter several times to obtain an adequate medical opinion addressing when the Veteran's left and right upper extremity radiculopathy first manifested and to determine the severity of such radiculopathy. To date, no adequate medical opinion has been obtained. Evidence in support of the claim include the Veteran's competent and credible reports of left and right upper extremity radiculopathy throughout the entire period on appeal The Board finds the evidence to at least be in equipoise. Thus, based on the foregoing and resolving all reasonable doubt in his favor, the Board finds that the Veteran reported pain into both of his shoulders that radiated into his arms throughout the appeal period and that his descriptions of such pain would warrant at least a minimum compensable rating. Thus, separate compensable evaluations for left and right upper extremity radiculopathy are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Due process considerations require that the RO evaluate and promulgate the initial rating for such disabilities in the first instance to preserve the Veteran's appellate rights. The Board's grant represents a full grant of this aspect of the appeal in appellate status. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.