Citation Nr: 18160633
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-10 458A
DATE:	December 27, 2018
ORDER
1. The 60 percent disability rating for the right knee disability is restored, effective March 1, 2015, and the appeal is granted.
2. The 20 percent disability rating for the cervical spine disability is restored, effective March 1, 2015, and the appeal is granted.
3. Entitlement to an increased rating in excess of 60 percent for the service-connected right knee is denied.
4. Entitlement to an increased rating in excess of 60 percent for the service-connected left knee is denied.
5. Entitlement to an increased rating in excess of 20 percent for the service-connected cervical spine disability is denied.
6. Subject to the law and regulations governing the payment of monetary benefits, entitlement to an earlier effective date, prior to January 30, 2013, for the award of total disability due to individual unemployability (TDIU) is granted. 
REMANDED
1. The issue of entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. 
2. The issue of entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. 
FINDINGS OF FACT
1. At the time of the December 2014 rating decision, the Veteran’s right knee disability did not reflect an improvement of his ability to function under the ordinary conditions of life was not demonstrated.
2. At the time of the December 2014 rating decision, the Veteran’s cervical spine disability did not reflect an improvement of his ability to function under the ordinary conditions of life. 
3. Throughout the appeal period, the Veteran’s right knee disability has been productive of chronic residuals consisting of severe painful motion or weakness. 
4. Throughout the appeal period, the Veteran’s left knee disability has been productive of chronic residuals consisting of severe painful motion or weakness. 
5. Throughout the appeal period, the Veteran has demonstrated forward flexion of the cervical spine to no less than 30 degrees and there has been no evidence of ankylosis of the cervical spine. 
6. Since October 28, 2008, the Veteran’s service-connected disabilities have precluded him from securing or following substantially gainful employment.
CONCLUSIONS OF LAW
1. The reduction of the rating for a right knee disability from 60 percent to 30 percent, effective March 1, 2015, was improper, and the 60 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, Diagnostic Code (DC) 5010-5055.
2. The reduction of the rating for a cervical spine disability from 20 percent to 10 percent, effective March 1, 2015, was improper, and the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 4.1, DC 5237-5243 (2017).
3. Throughout the appeal period, the criteria for a rating in excess of 60 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.21, 4.59, 4.71a, DC 5010-5055 (2017). 
4. Throughout the appeal period, the criteria for a rating in excess of 60 percent for the service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.21, 4.59, 4.71a, DC 5010-5055 (2017). 
5. The criteria for a rating in excess of 20 percent for the service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5237-5243 (2017).
6. The criteria for entitlement to TDIU since October 28, 2008 are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1968 to April 1972.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2011, February 2012, January 2014, and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia and St. Paul, Minnesota. Jurisdiction is currently with the RO in Atlanta, Georgia.
Additionally, the Veteran originally requested a hearing regarding his appeal. However, in August 2018 correspondence, his representative indicated that the Veteran was withdrawing his hearing request. Thus, the request is withdrawn and the Board will proceed with adjudication of the claim.
The Board notes that the RO awarded TDIU in a March 2015 rating decision, effective January 30, 2013. The Veteran disagreed with this award in a February 2016 notice of disagreement. As the current appeal period stems from the original increased rating claim for the bilateral knee disabilities, the Board will evaluate whether the Veteran is entitled to an earlier effective date for TDIU. 
Rating Reductions
Notwithstanding the procedural steps that must be taken, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). 
The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i).
The Veteran was notified of the RO’s intent to reduce his ratings for his service-connected right knee and cervical spine disabilities by a letter dated in February 2014. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. Final action to reduce the rating for his disability was taken pursuant to 38 C.F.R. § 3.105 (e) in the December 2014 rating decision. The rating reductions were made effective beginning March 1, 2015.
Consequently, the Board finds that the RO did not violate any of the procedures required under 38 C.F.R. § 3.105, as the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reductions were made effective no sooner than permitted (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105 (e).
At the time the reductions became effective on March 1, 2015, the previous ratings for the Veteran’s right knee and cervical spine disabilities had been in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable. In this regard, the ratings may be reduced only if the examinations upon which the reductions were based were at least as full and complete as the examinations used to establish the prior higher evaluations. A rating that has been in effect for more than five years 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. 
Therefore, having decided that the process required to reduce the Veteran’s ratings was correctly followed by the RO, the next question to be addressed is whether these reductions were proper.
1. The 60 percent disability rating for the right knee disability is restored, effective March 1, 2015, and the appeal is granted.
The Board finds that the reduction of the Veteran’s rating for his service-connected right knee from 60 percent to 30 percent was improper, and thus restores the 60 percent rating effective March 1, 2015. 
The Veteran’s right knee disability has been evaluated under 38 C.F.R. § 4.71a, DC 5010-5055. 
Under DC 5055, for one year following implantation of a knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity.  With intermediate degrees of residual weakness, pain or limitation of motion, the condition is to be rated by analogy to diagnostic codes 5256, 5261 or 5262.  The minimum rating is 30 percent. See 38 C.F.R. § 4.71a, DC 5055. 
As noted in the applicable rating decision, the Veteran’s 60 percent evaluation was based upon a December 2010 VA examination report. In that examination report, the examiner noted weakness, stiffness, swelling, heat, giving way, lack of endurance, pain, and occasional immobility. The Veteran further reported flare-ups, which occurred up to three times daily and lasted for about 30 minutes. The examiner also noted painful motion and weakness resulting from the previous joint replacement surgery. Flexion was to 105 degrees, with pain, while extension was to 10 degrees. The Veteran also experienced difficulty standing and walking.
The December 2014 rating decision reduced the 60 percent rating based upon a December 2013 VA examination, which the RO determined did not demonstrate chronic residuals of the post-prosthetic replacement consisting of severe painful motion or weakness.
However, comparing the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 60 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Rather, the December 2013 examination report indicated that the Veteran continued to report flare-ups and demonstrated flexion to 100 degrees. The examiner further noted pain on movement, less movement than normal, disturbance of locomotion, and interference with standing. Thus, the evidence of record serves to support the continuance of the 60 percent evaluation, as it indicates that his right knee disability continued to result in painful and limited motion, as well as difficulty standing and walking. Improvement under the ordinary conditions of life and work is not demonstrated.  
Resolving all doubt in the Veteran’s favor, the Board finds that the reduction of the rating for the right knee disability was not proper because any improvement that occurred did not clearly reflect improvement in the ability to function in the ordinary course of life. As such, the 60 percent rating for the Veteran’s right knee disability is restored effective March 1, 2015, the date of the reduction.  
2. The 20 percent disability rating for the cervical spine disability is restored, effective March 1, 2015, and the appeal is granted.
The Board finds that the reduction of the Veteran’s rating for his service-connected cervical spine disability from 20 percent to 10 percent was improper, and thus restores the 20 percent rating effective March 1, 2015. 
The Veteran’s cervical spine disability has been evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DC 5237-5243. 
A 10 percent rating is assigned for 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.
A 20 percent rating is assigned 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.
As noted in the applicable rating decision, the Veteran’s 20 percent evaluation was based upon an August 2011 VA examination report. In that examination report, the examiner noted stiffness, decreased motion, numbness, and constant pain that was exacerbated by physical activity. The Veteran further reported flare-ups that resulted in pain, weakness, stiffness, and limited motion. Flexion was to 30 degrees, while the combined range of motion was 300 degrees. 
The December 2014 rating decision reduced the 20 percent rating based upon a December 2013 VA examination report. At that time, the Veteran stated that his condition had worsened and that he continued to experience flare-ups. Flexion was to 45 degrees, while the combined range of motion was 270 degrees. The examiner noted symptoms including pain on movement and less movement than normal. 
However, comparing the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 20 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Rather, the December 2013 VA examination reported indicated that he continued to experience limited and painful motion, and demonstrated a reduction in the combined range of motion. Additionally, the Veteran reported that his condition had worsened and that his flare-ups had persisted. Thus, the evidence of record serves to support the continuance of the 20 percent evaluation, as it indicates that the Veteran’s symptomatology had continued to result in limitation of motion. Improvement under the ordinary conditions of life and work is not demonstrated.  
Resolving all doubt in the Veteran’s favor, the Board finds that the reduction of the rating for the cervical spine disability was not proper because any improvement that occurred did not clearly reflect improvement in the ability to function in the ordinary course of life. As such, the 20 percent rating for the Veteran’s cervical spine disability is restored effective March 1, 2015, the date of the reduction.


Increased Rating
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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.
Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007).
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017).  
In Mitchell v. Shinseki, 25 Vet. App. 32 (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). 
When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion without functional limitation, however, cannot serve as the basis for a rating in excess of the minimum. Mitchell, supra.

1. Entitlement to an increased rating in excess of 60 percent for the service-connected right and left knee disabilities is denied.
The Veteran contends he is entitled to a 100 percent rating for his service-connected knee disabilities. As the 60 percent rating has been restored in the discussion above, that rating has been in place for the duration of the appeal period for the right knee. The Board notes that the Veteran is separately rated for instability of the bilateral knees. However, in April 2015, he indicated that he was not appealing the ratings for those issues. 
As noted above, the Veteran’s service-connected knee disabilities are rated under 38 C.F.R. § 4.71a, DC 5010-5055. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2017). In this case, DC 5010 addresses traumatic arthritis and DC 5055 indicates that the service-connected disabilities are considered to be prosthetic replacements of both knee joints, evaluated under 38 C.F.R. § 4.71a, DC 5055. 
Under DC 5055, for one year following implantation of a knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity.  With intermediate degrees of residual weakness, pain or limitation of motion, the condition is to be rated by analogy to diagnostic codes 5256, 5261 or 5262.  The minimum rating is 30 percent.  See 38 C.F.R. § 4.71a, DC 5055. 
Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. (2017)
DC 5256 provides ratings based on ankylosis of the knee. The minimum 30 percent rating is warranted for ankylosis in favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees. The maximum 60 percent rating is warranted for ankylosis of the knee that is extremely unfavorable, in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256 (2017).
DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 38 C.F.R. § 4.71a, DC 5261 (2017).
DC 5262 provides ratings based on the impairment of the tibia and fibula. The minimum 10 percent rating is warranted for impairment of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for impairment of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. The maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262 (2017).
The Veteran was afforded a VA examination for his knees in January 2009. He reported symptoms including weakness, stiffness, swelling, heat, giving way, constant pain, and lack of endurance. He described the pain as burning, aching, oppressing, sharp, cramping, and numbing. He denied redness, locking, fatigability, and dislocation. The examiner noted that a right knee replacement procedure was performed in 1998 and a left knee replacement procedure was performed in 2003, which resulted in painful motion and weakness in both knees. The Veteran further experienced difficulty standing and walking, as well as a slightly unsteady gait. The examiner noted that both knees demonstrated edema and weakness, but no effusion, tenderness, redness, heat, guarding of movement, subluxation, or locking pain. Both knees revealed crepitus. There was no evidence of genu recurvatum. The values recorded for the range of motion of both knees is confusing.  The information is set out in a chart and indicates flexion of the right knee to be to 125 degrees, with extension to 140 degrees.  Flexion of the left knee is indicated to be to 5 degrees with extension to 0 degrees.  The dramatic limitation of motion in the left knee and unusual extension in the right knee is not otherwise indicated in the narrative portion of the report.  It may be more likely flexion of the right knee was to 125 degrees, and to 140 degrees in the left knee, both with evidence of pain, and extension was full.  In any event, after repetitive use, both knees were reportedly additionally limited by pain, fatigue, weakness, lack of endurance, and incoordination, resulting in a major impact on functional ability. However, there was no additional limitation in range of motion. The examiner noted moderate instability in the right knee, as well as severe instability in the left knee. 
In December 2010, the Veteran underwent another VA examination for his bilateral knee disability. The examiner noted weakness, stiffness, swelling, heat, giving way, lack of endurance, and pain. The Veteran further reported occasional immobility in the right knee, as well as flare-ups in both knees, which occurred up to three times daily and lasted for about 30 minutes. He denied redness, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. The examiner also noted painful motion and weakness resulting from the previous joint replacement surgery. The Veteran experienced difficulty standing and walking. There was no evidence of edema, instability, abnormal movement, effusion, malalignment, guarding, crepitus, locking pain, ankylosis, or genu recurvatum in either knee. Flexion was to 105 degrees in the right knee, and 115 degrees in the left knee, both with evidence of pain. Extension was to 10 degrees in the right knee, and 0 degrees in the left knee. After repetitive use, both knees were not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. Furthermore, stability testing was normal in each knee. 
In December 2013, the Veteran was afforded another VA examination to evaluate the severity of his right and left knee disabilities. He reported flare-ups resulting in sharp pain and buckling, as well as functional impairment which impacted his ability to walk and bend. Flexion was to 100 degrees and extension was to 0 degrees in both knees. The Veteran could perform repetitive use testing with no additional loss of range of motion. The examiner noted pain in passive and active movement, which not did impact range of motion. Furthermore, there was no evidence of pain in weight-bearing or non weight-bearing. There was no localized tenderness or pain on palpation of either knee. However, the examiner noted less movement than normal, pain on movement, disturbance of locomotion, and interference with standing. Additionally, there was no functional loss noted during flare-ups or repeated use over time. Muscle strength testing and stability testing were both normal, with no evidence of muscle atrophy. The examiner also found no evidence of ankylosis, effusion, or recurrent subluxation. There was no history of recurrent patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or a meniscal condition. The Veteran reported difficulty walking and standing for prolonged periods of time due to his bilateral knee replacement procedures. He did not use an assistive device for locomotion.
Throughout the period on appeal, the Board finds that a rating in excess of 60 percent is not warranted. The Board concludes that severe residuals have been present throughout the appeal period, and that the criteria for a 60 percent rating, but no higher, have been met during this time. The Board acknowledges the Veteran’s reports of pain, instability, flare-ups, and weakness of both knees. However, such symptomatology is reflective of the severe pain and weakness encompassed by the 60 percent rating. It is important to note that a 60 percent rating is the maximum schedular disability rating available for the knee under DC 5055 or any other DC pertaining to the knee. Thus, a rating in excess of 60 percent for the disabilities of the right and left knees is denied.
Additionally, the Board notes that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The combined evaluations for disabilities at or below the knee shall not exceed a 60 percent disability rating, as provided by 38 C.F.R. § 4.71a, DCs 5162, 5163, 5164 (amputation at the middle or lower thirds of the thigh; amputation of the leg with defective stump, thigh amputation recommended; and amputation not improvable by prosthesis controlled by natural knee action all warrant a 60 percent evaluation). The “amputation rule,” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, where amputation is performed. 38 C.F.R. § 4.68. 
As such, because a knee rating cannot exceed the currently assigned 60 percent evaluation without running afoul of the restrictions set forth in 38 C.F.R. § 4.68, the Board need not consider whether higher disability ratings are warranted for any aspect of the Veteran’s bilateral knee impairment during the applicable period. 
Overall, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 60 percent for the service-connected right and left knee disabilities throughout the period on appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.
2. Entitlement to an increased rating in excess of 20 percent for the service-connected cervical spine disability is denied.
The Veteran contends he is entitled to a higher rating for his service-connected cervical spine disability. As the 20 percent rating has been restored in the discussion above, that rating has been in place for the duration of the appeal period. As noted above, the Veteran’s service-connected cervical spine disability is rated under DC 5237-5243. 38 C.F.R. § 4.71a, DC 5237-5243. 
The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that 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 following ratings are assigned:
A 10 percent rating is assigned for 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.
A 20 percent rating is assigned 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 assigned for forward flexion of the cervical spine at 15 degrees or less; or, favorable ankylosis of the entire cervical spine.
A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine.
A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71(a).
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 
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. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 and of the thoracolumbar spine is 240 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 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. See 38 C.F.R. § 4.71a, DC 5235 to 5242.
In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome (IVDS) may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243.
The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned.
Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is 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.
Note (2) following 38 C.F.R. § 4.71a, DC 5243 provides that if an 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever results in a higher evaluation of that segment.
The evidence of record does not show that the Veteran has experienced IVDS requiring bed rest during any period on appeal. As required bed rest is a fundamental element for an evaluation under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating under these criteria. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine.
In August 2011, the Veteran was afforded a VA examination for his cervical spine disability. He reported symptoms including pain, stiffness, numbness, decreased motion, and limitation in walking. He denied experiencing fatigue, spasms, paresthesia, weakness, or bowel and bladder impairment. The Veteran described flare-ups that resulted in pain, weakness, limitation of motion, clicking in his shoulders, and neck stiffness. The condition had not resulted in any episodes of incapacitation in the past 12 months. Flexion and extension were to 30 degrees, while right and left lateral flexion were to 40 degrees. Right and left rotation were to 80 degrees. The examiner noted pain on motion during flexion, extension, and lateral flexion. Repetitive use did not additionally limit functional ability due to pain, fatigue, weakness, lack of endurance, or incoordination. The effects on the Veteran’s daily activities included difficulty with heavy lifting, bending, prolonged standing, walking, and climbing stairs.
In December 2013, the Veteran underwent a second VA examination to evaluate the severity of his cervical spine disability. He reported flare-ups that impacted his ability to walk, but no functional loss or impairment. Flexion and extension were to 40 degrees, while right and left lateral flexion were to 20 degrees. Right lateral rotation was to 60 degrees, with left lateral rotation to 80 degrees. The Veteran was able to perform repetitive use testing with no additional limitation of range of motion. The examiner noted painful passive and active motion, but no evidence of pain with weight-bearing or non weight-bearing. Furthermore, there was no evidence of localized tenderness or pain on palpation. The Veteran’s gait and spinal contour were normal, with no guarding or muscle spasms. The examiner noted less movement than normal and pain on movement as contributing factors of the disability. There was no functional loss indicated during flare-ups or with repeated use over time. Muscle strength testing was normal, with no evidence of muscle atrophy. There was no objective evidence of ankylosis. He denied any objective neurologic abnormalities related to the cervical spine disability. Although the Veteran had IVDS of the cervical spine, he had not experienced any incapacitating episodes in the past 12 months. The Veteran did not use an assistive device for locomotion. 
Throughout the appeal period, the Veteran has demonstrated forward flexion of the cervical spine to 30 degrees. There is no indication that his forward flexion has been less than 15 degrees since that time. Additionally, repetitive use testing did not result in additional loss of range of motion or functional ability. As the Veteran was not observed after repetitive use over time or during a flare-up at the time of the November 2017 VA examination, the examiner did not assess any additional functional loss in terms of range of motion loss, and, thus, any prediction in limitation in function or motion, in specific degrees, during flare-ups or after repetitive use over time would be mere speculation. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time or flare-ups. Therefore, the Board finds that such factors, including consideration of the Veteran’s lay statements, do not result in functional loss more nearly approximating flexion limited to 15 degrees of the cervical spine. See DeLuca, supra; Mitchell, supra.  
The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this VLJ expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, his statements regarding flare-ups that resulted in pain, weakness, limitation of motion, clicking in shoulders, neck stiffness, and impaired his ability to walk would not warrant a higher evaluation based upon flare-ups since such flare-ups do not additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the principle of stabilization of ratings.  
In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the principle regarding stabilization of ratings.  
There has been no evidence of ankylosis of the cervical spine during the period on appeal. The Board notes that the December 2013 examiner attributed less movement than normal due to ankylosis, adhesions, and other factors. However, the same examiner specifically determined that there was no ankylosis of the cervical spine, which indicates that the limited movement was the result of factors other than ankylosis. See December 2013 VA examination report.
Additionally, the Board notes that the Veteran has been separately rated for radiculopathy of the bilateral upper extremities associated with his cervical spine disability. As these issues have been appealed and require further development, they are discussed in the remand section below.
Thus, the preponderance of the evidence is against a rating in excess of 20 percent for any portion of the appeal period, as there is no indication that cervical spine flexion was limited to 15 degrees or less, or that there has been cervical spine ankylosis since that time. 38 C.F.R. § 4.71a, DC 5237-5243.
3. Entitlement to an earlier effective date, prior to January 30, 2013, for TDIU is granted.
The Veteran asserts entitlement to an effective date prior to January 30, 2013 for the grant of TDIU. See Notice of Disagreement dated February 2016. As noted in the Introduction, a March 2015 rating decision awarded entitlement to TDIU and assigned an effective date of January 30, 2013, based upon the date the claim for TDIU was filed. For the following reasons, the Board finds that an earlier effective date of October 28, 2008 is warranted. 
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), Dalton v. Nicholson, 21, Vet. App. 23, 32-34 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim”).
With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101 (2012); 38 C.F.R. § 3.151. Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer in effect, because it was in effect during the pendency of this appeal, it is applicable to the present case.
As noted, in Rice v. Shinseki, 22 Vet. App. 447, 453, 455 (2009), the Court held that when an appellant appeals the initial disability rating for a service-connected disability and also submits evidence of unemployability, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o). See Rice, supra.
Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned 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. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. 
Here, the formal claim for TDIU was initiated with the January 2013 filing of the Veteran’s VA Form 21-8940. However, the underlying TDIU claim is part and parcel of the Veteran’s claim for an increased rating for the bilateral knee disabilities, as identified in the increased rating claim from October 2008. Thus, the earliest possible effective date for the Veteran’s TDIU claim is the date of his underlying increased rating knee claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran’s communication seeking an increased rating for his service-connected knees was received by the RO in October 2008. The Veteran has not argued, and the evidence of record does not indicate, that there exists an earlier claim for an increased rating for the knee disabilities. See 38 C.F.R. §§ 3.151, 3.155, 3.400. Accordingly, the earliest potential effective date for a TDIU is October 28, 2008.
Affording the Veteran the benefit of the doubt, the Board finds that the evidence supports an earlier effective date of October 28, 2008 for the award of TDIU. Indeed, the VA Form 21-8940 indicates that the Veteran was previously employed as a truck driver and that he became too disabled to work in September 2008. Additionally, the January 2009 VA examiner noted that the service-connected knee disabilities resulted in flare-ups precipitated by physical activity, as well as limitations on standing and walking. Furthermore, the December 2010 VA examiner concluded that the Veteran was unable to drive tractor trailers due to his knee pain and medication. The Board also notes that the September 2011 decision issued by the Social Security Administration (SSA) determined that the Veteran had been unable to obtain employment, including any past relevant work, since October 2008.
Therefore, since October 28, 2008, there is evidence of impairment with the Veteran’s ability to work due to his service-connected knee disabilities. In addition, his left knee disability has been rating 60 percent disabling since October 28, 2008, while his combined rating has been at least 90 percent since that date. Thus, the schedular criteria has been fulfilled throughout the appeal period. When considering the Veteran’s prior work experience primarily consisting of truck driving, along with his combined disability picture, the Board finds that October 28, 2008, but no earlier, is the appropriate effective date for the award of TDIU benefits, subject to the law and regulations governing the payment of monetary benefits.  
Finally, the Veteran and his representative has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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).
REASONS FOR REMAND
The issues of entitlement to initial ratings in excess of 20 percent for radiculopathy of the bilateral upper extremities are remanded. 
As noted above, the Veteran is service-connected for radiculopathy of the bilateral upper extremities, and is in receipt of a 20 percent disability rating for these disabilities. The record reflects that he has not yet been afforded a separate examination to evaluate his radiculopathy. Thus, the Board finds that a remand is necessary in order to afford the Veteran a complete examination for these disabilities to determine their current severity.
The matters are REMANDED for the following action:
1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records referable to the Veteran’s claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 
2. Thereafter, schedule the Veteran for appropriate VA examination to determine the current nature and severity of his service-connected radiculopathy of the left and right upper extremities. The claims file should be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible.
Based on a review of the claims file and the results of the Veteran’s physical examination, and the Veteran’s statements regarding his symptoms, the examiner should assess the degree of severity of the bilateral upper extremity radiculopathy. The examiner should specifically opine as to whether any identified paralysis in either upper extremity is complete or incomplete, and if the Veteran has incomplete paralysis in either upper extremity, opine whether such symptomatology is best described as “mild,” “moderate,” “moderately severe,” or “severe.” 


A complete rationale must be provided for any opinions expressed.

 
M. E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Erin J. Trojanowski, Associate Counsel 

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

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