RATING HIGHER THAN 20 PERCENT FOR LEFT UPPER EXTREMITY CERVICAL RADICULOPATHY

Summary

The veteran, who served in the U.S. Army from May 1970 to January 1972, appeals the denial of increased ratings for bilateral cervical radiculopathy and the grant of service connection for shoulder disabilities. The Board previously remanded the shoulder claim for a nexus opinion, which was subsequently obtained. The Board found that the evidence, including the prior remand findings and the benefit of the doubt doctrine, supported granting service connection for right and left shoulder disorders secondary to the service-connected cervical spine disability with bilateral radiculopathy. The examiner diagnosed bilateral shoulder strain with painful motion but could not establish a baseline severity. The Board granted service connection for the shoulder conditions based on the principle that any doubt should be resolved in the veteran's favor when a baseline is lacking. The issues of increased ratings for cervical radiculopathy were remanded due to the Board's failure to address grip instability and dropping items, and the examiner's opinion not fully addressing the impact of cervical radiculopathy on hand/finger functionality. The case was also remanded for a TDIU evaluation, as the veteran's disabilities met a low threshold for extraschedular referral based on a prior pension grant. The Board noted that the veteran is not eligible for schedular TDIU prior to September 21, 2021.

Full Decision Text

Citation Nr: 25008104
Decision Date: 06/18/25	Archive Date: 06/18/25

DOCKET NO. 18-05 367
DATE: June 18, 2025

ORDER

Entitlement to service connection to a right shoulder disorder secondary to cervical spine disability is granted.

Entitlement to service connection to a left shoulder disorder secondary to cervical spine disability is granted.

REMANDED

Entitlement to a rating higher than 20 percent for right upper extremity cervical radiculopathy is remanded.

Entitlement to a rating higher than 20 percent for left upper extremity cervical radiculopathy is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDING OF FACT

It is at least as likely as not that the Veteran has symptomatic manifestations of right and left shoulder impairment secondary to his service-connected cervical spine disability with bilateral radiculopathy.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. § 3.310.

2. The criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. § 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 1970 to January 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 agency of original jurisdiction (AOJ) rating decision. 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of that proceeding is of record.

This appeal was previously before the Board in May 2024. At that time, the Board remanded the issue of service connection for shoulder disability for additional development, specifically a nexus opinion. 

As for the issues pertaining to increased ratings for cervical radiculopathy, the Board denied them on their merits. The Veteran timely appealed to Court of Appeals for Veterans Claims (Court). In a January 2025 decision, the Court granted a joint motion for remand (JMR), vacating and remanding his claims for additional development.  As discussed below, the Board finds that additional remand is required for further evidentiary development consistent with the JMR.

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Service Connection 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The prior Board remand determined that the record reasonably raised functional impairment of the right and left shoulder being caused by service-connected cervical spine disability with bilateral radiculopathy. See Bailey v. Wilkie, 33 Vet. App. 188 (2021); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); 38 C.F.R. § 3.155(d)(2) (stating that VA will consider all lay and medical evidence in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, Schedule for Rating Disabilities).

Notably, the Veteran's left cervical radiculopathy holds a 20 percent rating under Diagnostic Code (DC) 8510, which contemplates possible impairment of "shoulder" "movements." See 38 C.F.R. § 4.124a, DC 8510. In June 2024, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed shoulder disabilities. At that time, the examiner diagnosed the Veteran with a bilateral shoulder strain with painful motion. The examiner found an inability to establish a baseline level of severity because of insufficient medical evidence.  

The Board observes that, in accordance with the benefit of the doubt doctrine, the lack of a pre-aggravation baseline dictates that all such symptoms must be attributable to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The criteria of DC 8510 contemplate potential impairment of shoulder motion. The examiner did not directly address the Board's remand directive as to whether the right and/or left shoulder disabilities would have been less severe "but-for" the cervical spine disability with bilateral radiculopathy. See Spicer v
 the Veteran with a bilateral shoulder strain with painful motion. The examiner found an inability to establish a baseline level of severity because of insufficient medical evidence.  

The Board observes that, in accordance with the benefit of the doubt doctrine, the lack of a pre-aggravation baseline dictates that all such symptoms must be attributable to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The criteria of DC 8510 contemplate potential impairment of shoulder motion. The examiner did not directly address the Board's remand directive as to whether the right and/or left shoulder disabilities would have been less severe "but-for" the cervical spine disability with bilateral radiculopathy. See Spicer v. McDonough, 61 F4th 1360 (2023) (holding that the but-for causation standard is not limited to a single cause and effect, but rather contemplates multi-causal links, including action and inaction; also noting that "some speculation is naturally baked into but-for causation"). On these principles, the Board grants service connection for right and left shoulder disorders. 

REASONS FOR REMAND

Increased Ratings for Bilateral Cervical Radiculopathy

As previously noted, this issue was before the Board in May 2024, at which time it was denied on the merits. The Veteran timely appealed to the Court. In the JMR, the parties agreed that the Board failed to provide proper reasons and bases for its denial for higher ratings because, in relevant part, the Board did not address whether either a higher rating or separate compensable rating was warranted for the Veteran's documented symptoms of grip instability and dropping items. Notably, the Veteran had filed separate claims for carpal tunnel syndrome and trigger fingers which were denied in a January 2025 AOJ rating decision. 

The Veteran was afforded a VA examination in January 2025. At that time, the Veteran's symptoms of carpal tunnel and trigger finger included radiation of pain and numbness of the bilateral median nerves to the wrists and fingers. The examiner found that the Veteran's diagnoses of carpal tunnel syndrome and trigger finger were not caused or aggravated by his service-connected cervical condition. However, the examiner did not discuss whether any grip instability or functional impairment of the Veteran's hands or fingers was attributed to his cervical radiculopathy.

On this record, it is unclear how much, if any, of the Veteran's impairment to the hands and fingers, which causes grip instability, is attributed to his service-connected cervical radiculopathy. Accordingly, the Board finds that remand is required to obtain another examination to determine the symptoms attributed to the Veteran's service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998).

Further, the AOJ has yet to adjudicate whether a separate rating is warranted for the Veteran's shoulders. To date, the Veteran is not eligible for schedular consideration of TDIU prior to September 21, 2021. See 38 C.F.R. § 4.16a. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996). Although the Board may not assign an extraschedular rating initially, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue is either reasonably raised by the evidence of record, or, as in this case, by the claimant. Barringer v. Peake, 22 Vet. App. 242 (2008). The appropriate standard for the Board when determining whether to remand a claim for a TDIU on an extraschedular basis pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019).

In July 2005, the AOJ granted entitlement to pension on a finding that the Veteran was "considered to be unable to work due to the disabilities of primary neck strain and degenerative joint disease; lumbosacral strain mild. There is also some right shoulder strain described as mild." This meets the low Ray threshold for extraschedular referral.

The matters are REMANDED for the following action:

1. Associate with the claims folder updated treatment records.

2. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected cervical radiculopathy. The examiner should specifically identify the cervical nerve roots affected and provide a clear statement whether any of the affected nerve roots involve functionality of the fingers, hand and wrist movement (separate and distinct from carpal tunnel syndrome) and, if so, specifically identify
 "considered to be unable to work due to the disabilities of primary neck strain and degenerative joint disease; lumbosacral strain mild. There is also some right shoulder strain described as mild." This meets the low Ray threshold for extraschedular referral.

The matters are REMANDED for the following action:

1. Associate with the claims folder updated treatment records.

2. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected cervical radiculopathy. The examiner should specifically identify the cervical nerve roots affected and provide a clear statement whether any of the affected nerve roots involve functionality of the fingers, hand and wrist movement (separate and distinct from carpal tunnel syndrome) and, if so, specifically identify which finger(s), hand functionality and/or wrist functionality is impaired.

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3. After readjudicating the claims, and if the criteria for schedular consideration of TDIU are not met for any time during the appeal period, forward the Veteran's claim to the Director, Compensation Service, for consideration of the assignment of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b).

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Orie, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.