Citation Nr: 1829774	
Decision Date: 08/06/18    Archive Date: 08/17/18

DOCKET NO.  12-35 659	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to an increased evaluation for cervical spine degenerative disease (neck disability), to include the propriety of reduction of the disability rating from 20 percent, to 10 percent, effective August 23, 2017.

2.  Entitlement to an increased evaluation for left upper extremity cervical radiculitis (LUE radiculopathy), to include the propriety of reduction of the disability rating from 20 percent, to 10 percent, effective December 29, 2010.

3.  Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans
WITNESSES AT HEARING ON APPEAL

The Veteran and her spouse


ATTORNEY FOR THE BOARD

Kate Sosna, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 2001 to August 2002.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.  

In July 2017, the Board remanded this matter for development; it now returns for further appellate review. 

In August 2017, while on remand, the Agency of Original Jurisdiction (AOJ) reduced the Veteran's neck disability rating from 20 percent to 10 percent and in the May 2011 rating decision on appeal her LUE radiculopathy rating was reduced; neither reduced rating impacted her overall disability rating.  The Board notes that rating reductions claims are separate from increased ratings claims.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).  However, in this case, the rating reductions resulted from the Veteran's claim for a higher rating for her neck disability and, with regards to the neck disability, the reduction was effectuated by the RO despite the fact that the Board held jurisdiction over the claim for an increased rating for said disability.  Therefore, both the increased rating claims and the propriety of the rating reductions are on appeal, as reflected on the title page.

In the May 2011 decision on appeal, the Veteran was granted service connection for right upper extremity (RUE) radiculopathy.  Thereafter, in a May 2015 rating decision the Veteran was assigned a temporary total rating from October 11, 2012, to November 30, 2012, for convalescence from neck surgery.  While radicular symptoms associated with a spinal disorder are normally considered part and parcel of an increased rating for the spinal disorder, as is the propriety of the length of a temporary total rating, in this case, the Veteran specifically limited her October 2011 notice of disagreement to the LUE and neck disability.  Similarly, she has never expressed dissatisfaction with the period for convalescence.  As such, the Board has limited the decision below to the issues identified by the Veteran and to the periods during which she was not already in receipt of a total disability rating.

Finally, the Board notes that following the issuance of the October 2017 supplemental statement of the case (SSOC), the Veteran filed an appeal as to this case with the United States Court of Appeals for Veterans Claims (Court).  The appeal has since been dismissed for lack of jurisdiction as the SSOC did not constitute a final decision of the Board.  If the Veteran is dissatisfied with this ruling, as explained in the attached document, "Your Rights to Appeal Our Decision", she may file a new appeal with the Court.


FINDINGS OF FACT

1.  Prior to August 23, 2017, excluding the period during which the Veteran was in receipt of a temporary total rating for convalescence, her neck disability was manifested by forward flexion of the cervical spine greater than 15 degrees, without ankylosis, incapacitating episodes of intervertebral disc syndrome (IVDS), nor associated objective neurological abnormalities other than LUE radiculopathy and RUE radiculopathy.

2.  Since August 23, 2017, the Veteran's neck disability has been manifested by forward flexion of the cervical spine greater than 30 degrees and a combined range of motion (ROM) of the cervical spine greater than 170 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, and incapacitating episodes of IVDS, or associated objective neurological abnormalities other than LUE and RUE radiculopathy.

3.  The evidence of record at the time the Veteran's neck disability rating was reduced from 20 to 10 percent demonstrated sustained improvement.  

4.  The Veteran is right handed.

5.  Prior to December 29, 2010, the Veteran's LUE radiculopathy was manifested by no more than mild paralysis of the upper radicular group of a minor extremity.

6.  Since December 29, 2010, the Veteran's LUE radiculopathy was manifested by no more than moderate incomplete paralysis of the musculocutaneous nerve of a minor extremity.

7.  The evidence of record at the time the Veteran's LUE radiculopathy rating was reduced from 20 to 10 percent demonstrated sustained improvement.

8.  Resolving all reasonable doubt in the Veteran's favor, her service-connected disabilities render her unable to secure or follow a substantially gainful occupation.



CONCLUSIONS OF LAW

1.  Prior to August 23, 2017, the criteria for a rating in excess of 20 percent for a neck disability were not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

2.  The reduction of the rating for a neck disability from 20 to 10 percent effective August 23, 2017, was proper.  38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. 
§§ 3.105 (e), 3.344, 4.71a, DC 5242.

3.  Since August 23, 2017, the criteria for a rating in excess of 10 percent for a neck disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242.

4.  Prior to December 29, 2010, the criteria for a rating in excess of 20 percent for LUE radiculopathy were not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8510.

5.  The reduction of the rating for LUE radiculopathy from 20 to 10 percent effective December 29, 2010, was proper.  38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 3.344, 4.124a, DC 8510.

6.  Since December 29, 2010, the criteria for a rating in excess of 10 percent for LUE radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, DC 8510-8517.

7.  The criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. 
§§ 3.102, 3.340, 3.341, 4.16.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Increased Rating Claims and Reductions

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.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor.  38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344.  The provisions of 3.344 (a) and (b) apply to ratings that have been continued for five years or more.  Here, the 20 percent rating for the Veteran's neck disability had been in effect for less than five years at the time the reduction took place, and, therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply as to that claim.  For service-connected disabilities not covered by 38 C.F.R. § 3.344 (a) and (b), reexamination disclosing improvement will warrant a rating reduction.  38 C.F.R. § 3.344 (c).

The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the Veteran's disability.  Brown v. Brown, 5 Vet. App. 413 (1993) (VA is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted.)  VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations.  Faust v. West, 13 Vet. App. 342 (2000).

The 20 percent disability rating for LUE radiculopathy was in effect from August 24, 2002, to December 29, 2010.  As the rating was in effect for greater than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) apply.  That regulation provides that rating agencies will handle cases affected by a change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  Specific to this case: (1) the Board must review "the entire record of examinations and the medical-industrial history...to ascertain whether the recent examination is full and complete[;]" (2) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction[;]" (3) "[r]atings on account of diseases subject to temporary and episodic improvement...will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated[;]" and (4) "[al]though material improvement in the physical or mental condition is clearly reflected, the rating agency will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life."  38 C.F.R. § 3.344(a) (2017).

Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

As an aside, VA regulations provide for certain procedural and notice requirements where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made.  38 C.F.R. § 3.105(e).  In this instance, the reduction in the Veteran's ratings, discussed fully below, did not result in a change to her compensation payments and the requirements of 38 C.F.R. 
§ 3.105(e) are therefore not relevant to this case. 

The appeal period before the Board begins on November 4, 2010, the date VA received the claim for an increased rating for the Veteran's neck disability, plus the one year look back period.  Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

A.  Reduction and Increased Rating for the Neck Disability

By way of background, the May 2011 rating decision on appeal assigned a 20 percent rating for the Veteran's neck disability.  Thereafter, in August 2017, the AOJ issued another rating decision in which the neck disability rating was reduced to 10 percent, effective August 23, 2017.  The Veteran maintains that a 20 percent rating or higher is warranted for the entire appeal period due to her neck disability symptoms of pain, decreased range of motion, inability to lift items over her head, side effects from her pain medication, and difficulty performing physical tasks.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

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.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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.  In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain 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, or endurance."  Id., quoting 38 C.F.R. § 4.40.  

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  
38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  Correia v. McDonald, 28 Vet. App. 158 (2016).  

In the instant case, the record reflects that the Veteran's neck disability was examined by VA in December 2010, December 2014, and August 2017.  Upon a review of the VA examination reports, the Board notes that there was no evidence of abnormal weight-bearing during the 2014 or 2017 examinations.  Notably, as there is no laterality of the spinal column, ROM testing for contralateral joints is not clinically possible.  Further, while the examinations do not reflect passive ROM testing, the evidence does not suggest, and the Veteran has not argued, that her range of neck motion would be further limited in such capacity.  Moreover, as a general matter of course, active ROM testing usually results in further limitation than passive ROM testing.  See Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); Robinson, supra; Scott, supra.  Finally, the Veteran denied experience flare-ups of her neck disability at the 2014 and 2017 examinations and did not report flare-ups at the 2010 examination.  Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 

For the entire appeal, the Veteran's neck disability has been rated under DC 5242 under the General Rating Formula for Diseases and Injuries of the Spine.  Ratings under the General Rating Formula are made 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.  

The criteria for a rating of 10 percent are forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  

The criteria for a rating of 20 percent are 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.  

The criteria for a 30 percent rating are forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine.  The criteria for a 40 percent rating are unfavorable ankylosis of the entire cervical spine.  The criteria for a 100 percent rating are unfavorable ankylosis of the entire spine.  

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC.

Note (2): (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is 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 range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.

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.

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

IVDS may be evaluated under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. 
§ 4.25 (combined ratings table).  In this case, however, there is no competent evidence that the Veteran has ever been diagnosed with IVDS.  See 2010, 2014, and 2017 VA examination reports and available treatment records. 

	i.  Rating Prior to August 23, 2017

The Board finds that a rating in excess of 20 percent for the Veteran's neck disability is not warranted for the period prior to August 23, 2017.  In this regard, there is no evidence that her forward flexion of the cervical spine was limited to 15 degrees or less, or that her cervical spine was characterized by any form of ankylosis.  Here, the objective medical evidence of record shows that the Veteran's cervical flexion was limited, at most, to 30 degrees.  See December 2010 VA spinal examination report.  Importantly, none of the VA examiners or private clinicians noted the presence of ankylosis of the cervical spine.  See, e.g., December 2010 and December 2014 VA examination reports; June 2013 Social Security Administration (SSA) examination findings; and May 2015, November 2015, and December private treatment records from Dr. J.C.

The Board has also considered functional loss pursuant to Deluca, supra, and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59.  While pain was noted during the examinations and throughout the appeal, the 2014 examiner specifically found that such did not cause functional loss, albeit in a somewhat confusing manner given required sections to be completed in the examination report form.  Moreover, there was no additional loss of motion after repetitive use testing at any time during the appeal and the Veteran has not reported experiencing flare-ups of her neck disability.  Ultimately, as the evidence does not reflect forward flexion limited to 15 degrees or less, or ankylosis of the cervical spine, a rating in excess of 20 percent is not warranted under the General Rating Formula prior to August 23, 2017.  

	ii.  Propriety of the Reduction and Rating Since August 23, 2017

After a thorough review of the evidence of record, the Board finds that the record demonstrates that the Veteran's neck disability improved so as to warrant a rating reduction from 20 percent to 10 under DC 5242, effective August 23, 2017, as her neck symptomatology more nearly approximated the criteria for a 10 percent rating.

Turning to the evidence of record, the Veteran's 20 percent rating for her neck disability was based on a December 2010 VA examination report.  As noted above, her forward flexion of the cervical spine was limited to 30 degrees at that time, with a combined ROM of 160 degrees.  The Veteran continued to seek treatment for her pain thereafter, and eventually underwent a cervical spine surgery in 2012.  Post-surgical private treatment records and a December 2014 VA examination report yield cervical spine findings that are reflective of a 10 percent rating.  Indeed, the Veteran was noted to have non-compensable limitation of motion in association with a June 2013 SSA examination, December 2014 VA examination, May 2015 private treatment, November 2015 private treatment, and December 2015 private treatment; there was no evidence of a cervical spinal disability causing an antalgic gait in association with any of the aforementioned examinations.  Moreover, the August 2017 VA examination report, which was the ultimate basis for the reduction, was complete and thorough.  In this regard, the Veteran's VA medical records were reviewed and a complete medical history was obtained from her.  The examination clearly addressed the severity of the Veteran's cervical spine disability for rating purposes and showed that the Veteran only met the criteria for a lesser 10 percent rating.  

While the Veteran's private clinician, Dr. M.A., opined in October 2017 that her symptomatology had not improved and had in fact worsened, he failed to note a baseline level of severity.  For instance, it is unclear if he was familiar with the December 2010 VA examination and was noting no improvement since such time, or if he was noting there had been no improvement since, for instance, December 2015, when the Veteran's cervical spine disability did not warrant a compensable rating for limitation of motion or based on spinal disorders causing an antalgic gait.  Thus, the Board affords Dr. M.A.'s opinion limited probative weight as it is unclear what "improved" means in this case.

The Board acknowledges the contentions put forth by the Veteran regarding the impact of her service-connected neck disability on her daily activities.  Nevertheless, the Board finds that the most probative evidence reflects that her neck disability improved following her 2012 surgery and such improvement is documented in private and VA treatment records alike when compared to the pre-surgical records. Accordingly, the preponderance of the evidence supports a finding that the reduction was proper.  In any event, the Veteran is advised that the reduction did not decrease the amount of her monthly compensation. 

In conclusion, the Board finds that the propriety of the reduction of the evaluation of a neck disability from 20 percent to 10 percent, effective August 23, 2017, was proper.  

Similarly, the Board finds that a rating in excess of 10 percent for the Veteran's neck disability is not warranted since August 23, 2017.  In this regard, there is no evidence that her forward flexion of the cervical spine was limited to 30 degrees or less, or that her combined ROM of the cervical spine was limited to 170 degrees or less, which is necessary to support a higher rating.  Here, the objective medical evidence of record shows that the Veteran's cervical flexion was limited, at most, to 40 degrees, and the combined cervical ROM was limited, at most, to 325 degrees.  See August 2017 VA examination report.  Importantly, the 2017 VA examiner did not find evidence of spasms or guarding of the cervical spine severe enough to cause an abnormal gait or spinal contour, and the private and VA medical records do not otherwise support such a finding.  

As noted above, while the Veteran's private treatment provider opined that her back was more disabling than 10 percent, he provided no objective evidence to support such as it relates to the relevant rating criteria (i.e. ROM measurements or evidence that her cervical spine disability causes an antalgic gait) and the opinion is otherwise unsupported by any rationale.  As such, the Board affords the opinion no probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  

Again, the Board has considered functional loss pursuant to Deluca, supra, and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, but while the 2017 examiner noted the presence of pain, it was specifically noted that such did not cause functional loss.  Moreover, there was no additional loss of motion after repetitive use testing.  Additionally, the Veteran denied experiencing flare-ups.  Even if the Veteran did experience functional loss or flare-ups, such would have to cause an additional loss of 10 degrees forward flexion to warrant a higher 20 percent rating.  Ultimately, as the evidence since August 23, 2017, does not reflect forward flexion limited to 30 degrees or less, or a combined ROM limited to 170 degrees or less, even considering pain and functional impairment, a rating in excess of 10 percent is not warranted under the General Rating Formula.  

Finally, there was no evidence of ankylosis of the cervical spine at any point since August 23, 2017.  See August 2017 examination report.  

B.  Reduction and Increased Rating for LUE Radiculopathy

By way of background, in an April 2003 rating decision, the Veteran was assigned a 20 percent rating for cervical radiculitis effective August 24, 2002, based on C-6 radiculopathy causing decreased sensation in the left hand under DC 8510.  Then, in the May 2011 rating decision on appeal, the RO granted service connection for RUE radiculopathy rated as 10 percent disabling since November 4, 2010, pursuant to DCs 8599-8517 and decreased the Veteran's LUE rating to 10 percent effective December 29, 2010, under DC 8510-8517.

For impairment of an upper extremity, the disability rating assigned depends on whether the extremity is the major extremity or the minor extremity.  The Board notes that VA examination reports reveal that the Veteran is right handed, and, as such, her LUE radiculopathy impacts the minor extremity.

Under DC 8510, the following ratings apply: a 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremity; a 30 percent rating is warranted for moderate incomplete paralysis of the minor extremity; a 40 percent rating is warranted for severe incomplete paralysis of the minor extremity; and a 60 percent rating is warranted for complete paralysis of the minor extremity, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected.  38 C.F.R. § 4.124a, DC 8510.

DC 8517 provides the rating criteria for paralysis of the musculocutaneous nerve and, therefore, neuritis and neuralgia of that nerve.  38 C.F.R. § 4.124a, DC 8517.  If the musculocutaneous nerve is affected, then a 0 percent (noncompensable) rating is warranted for mild symptoms, and a 10 percent rating for moderate symptoms, or a 20 percent rating for severe incomplete paralysis, is warranted.  Id.  Complete musculocutaneous nerve paralysis, with weakness but not loss of flexion of the elbow and supination of the forearm warrants a 20 percent rating in the minor extremity.

The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a.  In applying the schedular criteria for rating peripheral nerve disabilities, 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 level of the nerve lesion or to partial regeneration.  38 C.F.R. 
§ 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

	i.  Rating Prior to December 29, 2010

Prior to December 29, 2010, the Board finds that a rating in excess of 20 percent for LUE radiculopathy is not warranted.  In this regard, the evidence shows regular complaints of numbness and tingling in the left arm, occasionally to the hand, but a February 2010 electromyography (EMG) was normal.  Additionally, the Veteran was noted to have normal LUE reflexes and full strength in conjunction with September 2010 testing performed by Dr. M.A.  Thus, as the Veteran's symptoms prior to December 29, 2010, were wholly sensory, the Board finds that the Veteran's functional impairment resulting from LUE radiculopathy was no more than mild and, consequently, a rating in excess of 20 percent is not warranted.

	ii.  Propriety of the Reduction and Rating Since December 29, 2010

After review of the evidence, the Board concludes that the totality of the evidence demonstrates that the reduction in this case was proper and that the Veteran's LUE radiculopathy warrants no more than a 10 percent rating since December 29, 2010.  

Initially, having reviewed the record evidence, the Board finds that the symptomatology attributable to the Veteran's service-connected LUE radiculopathy improved on VA examination on December 29, 2010, because she had no objective evidence of numbness in her LUE (as demonstrated by a normal EMG from September 2009 and February 2010, normal LUE strength, and normal sensation to touch in the LUE on physical examination).  The Board also finds that the improvement in the Veteran's service-connected LUE radiculopathy was sustained as she continued to have 4/5 LUE strength, normal deep tendon reflexes, and normal sensation to touch at a subsequent SSA examination.  While her strength had slightly decreased, it was subsequently noted to be full in 2014, 2015, and 2017.  The Veteran also has not identified or submitted any evidence demonstrating that, effective December 29, 2010, she experienced mild incomplete paralysis of the upper radicular group or severe incomplete paralysis of the musculocutaneous nerve in the LUE extremity as is respectively required for a 20 percent rating under DC 8510 and DC 8517.  See 38 C.F.R. § 4.124a, DCs 8510, 8517.  In summary, the Board finds that the rating reduction from 20 percent to 10 percent effective December 29, 2010, for LUE radiculopathy was proper.

The Board has considered the aforementioned provisions of 38 C.F.R. § 3.344 (a) and concludes that the evidence of record, including as discussed above, indicates that the Veteran's LUE radiculopathy had shown sustained improvement, which warranted the reduction in the disability rating.  Notably, the Veteran's disability rating for her LUE radiculopathy was not reduced upon a single VA examination, but rather after multiple VA examinations documented sustained improvement of the Veteran's LUE radiculopathy under the ordinary conditions of life.  Indeed, VA examinations conducted between the initial rating and the eventual reduction revealed symptoms commiserate with a lesser 10 percent rating for LUE radiculopathy.  In fact, while the Veteran endorsed tingling during a July 2009 examination, she denied any radicular pain to the LUE and was noted to have full LUE strength, normal muscle tone, normal sensation to touch, with, at worst, hyperactive reflexes without clonus.  Moreover, at a June 2004 examination she did not demonstrate any signs or symptoms of any neurologic compression of any nerve roots in her neck and denied upper extremity symptoms.  Thus, between the April 2003 grant of a 20 percent rating and the December 2010 reduction, the objective evidence of record repeatedly indicated that the Veteran's LUE radiculopathy was wholly sensory and no more than mild.  Since then, VA examination reports and private treatment records have routinely documented full strength, normal deep tendon reflexes, and normal sensation to touch in the LUE aside from the aforementioned SSA examination, which only revealed 4/5 strength.  See December 2014 and August 2017 VA examination reports; June 2013 SSA examination report; May 2015, November 2015, and December 2015 private treatment records from Dr. J.C.

As such, the Board concludes that the Veteran's LUE radiculopathy has shown sustained improvement.  Moreover, the sustained improvement indicates that such condition has been maintained under the ordinary conditions of life, as the aforementioned examinations cover a 13 year period (2004 - 2017).  Therefore, the Board finds, based on the preponderance of the evidence, that the Veteran's LUE radiculopathy had demonstrated sustained improvement by December 29, 2010, and, thus, the reduction of the 20 percent disability rating to 10 percent, effective December 29, 2010, was proper.  38 C.F.R. § 3.344.  As an aside, given the May 2011 rating decision's assignment of service-connection for RUE radiculopathy, the Veteran's overall rating for radiculopathy remained 20 percent even after December 29, 2010.

Finally, given the evidence discussed above, the preponderance of evidence weighs against the Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for LUE radiculopathy since December 29, 2010.  38 C.F.R. 
§ 4.124a, DCs 5210, 5217.

C.  Other Considerations

The Board has carefully reviewed and considered the lay statements from the Veteran, her mother, and her husband regarding the severity of her service-connected disabilities.  The Board also acknowledges that the Veteran, in advancing this appeal, believes that said disabilities have been more severe than the assigned disability ratings reflect.  Moreover, the Veteran and her family are competent to report on the Veteran's observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal.  Thus, the lay assessments as to the severity of the symptoms and their relationship to the rating criteria are deemed less probative than the opinions of medical practitioners who have specialized knowledge and skill in excess of the Veteran, her mother, and her husband.  

In a November 2011 submission, the Veteran's representative challenged the adequacy of the examination reports of record.  Specifically, she alleged that the VA examiners were incompetent, ignored private medical evidence of record, inaccurately read radiographic films related to her neck disability, failed to use goniometers in assessing her neck ROM, failed to consider periods of self-prescribed bed rest, failed to acknowledge muscle spasms, and made derogatory comments regarding the length of her military service.

Initially, the Board advises the Veteran that to warrant a 20 percent rating, her cervical spasms had to cause an abnormal gait or abnormal spinal contour; the mere presence of spasms cannot justify a 20 percent award.  38 C.F.R. § 4.71a, DC 5242.  Furthermore, as the Veteran has not been diagnosed with IVDS and has never been prescribed bed rest by a physician, her self-imposed bed rest cannot establish a higher rating under the IVDS rating formula.  

Furthermore, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties).  The presumption of regularity is only rebuttable by clear evidence to the contrary.  Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).  Here, as the Veteran has not demonstrated that the VA examiners were unaware of any significant fact in her case or introduced any evidence that shows a lack of impartiality or incompetence, she has not met her burden to show that the VA examinations are inadequate and the Board finds the arguments in this regard to be unpersuasive.  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error).  

The Board has considered whether further staged ratings under Francisco, supra, and Hart, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that her symptomatology has been stable throughout each period on appeal, aside from the temporary total evaluation assigned for her neck disability.  Therefore, assigning further staged ratings is not warranted.
The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. 366 (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).

Ultimately, the Board finds that the preponderance of the evidence is against the claims for increased ratings or restoration of the reduced benefits.  Therefore, the benefit of the doubt doctrine is not applicable and the Veteran's claims for higher or restored ratings are otherwise denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

II.  Entitlement to a TDIU

The Veteran asserts that she is unable to secure or maintain substantially gainful employment due to her service-connected disabilities.  

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a).  

Here, the record reflects that the Veteran is eligible for TDIU consideration on a schedular basis as she has had a combined disability rating of 80 percent (plus a bilateral factor), excluding the period she was receiving a temporary total rating for convalescence since November 4, 2009, and that one of her disabilities (migraines) has been rated as 50 percent disabling. 

Based on a review of the evidence, the Board concludes that an award of TDIU is warranted.  In this regard, the record further reflects that, despite having a master's degree in special education, the Veteran has not maintained steady or consistent employment since 2009 when she was medically retired from the Department of Defense.  Since then, she has applied for and been awarded SSA benefits for her neck disability, which she asserts limits her ability to lift, bend, and otherwise work with her mentally handicapped students.  Furthermore, she has consistently and credibly reported that the medication she takes to alleviate her migraine and neck symptomatology causes her to be forgetful and renders her unable to care for children.  

Turning to the medical evidence regarding employability, in August 2011 the Veteran's private physician, Dr. P.K., found that the Veteran continued to be unable to work due to her neck and migraine symptoms.  Then, in association with a Vocational Rehabilitation and Education assessment in July 2014, the examiner found that the Veteran's "service-connected disabilities significantly impair her ability to prepare for, obtain[,] and/or retain employment."  More recently, in November 2017, another private clinician, R.S., noted that the Veteran's need to constantly manage her pain and stress levels made her ability to fulfill commitments unpredictable.  More specifically, the clinician stated that "the capricious nature of [the Veteran's] 'good' days (or parts of days) makes committing to regular employment difficult and finding employment that fits her disability limitations nearly impossible."

Given the foregoing, the Board finds that the Veteran's service-connected disabilities prevent her from securing or following substantially gainful employment.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 53-56.  Entitlement to a TDIU is granted, exclusive of the period the Veteran was in receipt of a total disability rating for convalescence. 

In effectuating the award herein, the AOJ is specifically advised that the Board has awarded the Veteran a TDIU based on the cumulative impact of her service-connected disabilities; as such, the TDIU in this case cannot serve to establish a total disability rating for any singular disability.  Akles v. Derwinski, 1 Vet. App. 118 (1991).  


ORDER

Prior to August 23, 2017, a rating in excess of 20 percent for a neck disability is denied.

Since August 23, 2017, a rating in excess of 10 percent for a neck disability is denied.

Prior to December 29, 2010, a rating in excess of 20 percent for LUE radiculopathy is denied.

Since December 29, 2010, a rating in excess of 10 percent for LUE radiculopathy is denied.

A TDIU is granted, subject to the laws and regulations governing the payment of monetary awards.

____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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