DISEASES AND INJURIES OF THE SPINE

CYNTHIA M. BRUCE · 2026 · Case ID: A26040604

DENIED

Summary

The veteran, who served from July 1989 to July 1992, appeals the denial of increased disability ratings for his service-connected cervical spine disability, neck scar, and bilateral upper extremity radiculopathy. The Board reviewed the evidence of record from October 12, 2020, forward, including VA examinations and private treatment records. For the cervical spine, the Board found that the veteran's range of motion limitations, while present, did not meet the criteria for a rating higher than the 20 percent he already received, noting normal findings in most objective tests and the absence of incapacitating episodes or ankylosis. For the neck scar, the Board found no probative evidence of disfigurement or instability that would warrant a compensable rating, noting the absence of complaints to treating providers despite the veteran's testimony of pain. For bilateral upper extremity radiculopathy, the Board found that objective medical evidence, including EMG/nerve conduction studies and multiple VA examinations, consistently showed normal or only mildly impaired neurological findings, outweighing the veteran's subjective reports of pain and functional limitations. The Board concluded that the evidence supported no more than a mild degree of incomplete paralysis in each arm. Consequently, the Board denied increased ratings for all conditions, finding the evidence weighed against the veteran's claims and did not warrant application of the benefit-of-the-doubt doctrine.

Rationale

Objective findings showed normal or mildly limited range of motion.; No incapacitating episodes or ankylosis noted.; Veteran's subjective complaints outweighed by objective evidence.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5242

Docket No.

210805-177013

Full Decision Text

Citation Nr: A26040604
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210805-177013
DATE: April 30, 2026

ORDER

Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability is denied.

Entitlement to a compensable rating for the Veteran's service-connected neck scar is denied.

Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected right upper extremity radiculopathy is denied.

Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left upper extremity radiculopathy is denied.

FINDINGS OF FACT

1. Since October 12, 2020, the Veteran's service-connected cervical spine disability has been manifested by forward flexion of the cervical spine limited, at worst, to 30 degrees. The Veteran's cervical spine disability did not result in forward flexion of the cervical spine limited to 15 degrees or less, or actual or functional ankylosis of the entire cervical spine or entire spine.

2. Since October 12, 2020, the evidence does not probatively establish that the Veteran's service-connected neck surgical scar has been manifested by any characteristics of disfigurement, or visible or palpable tissue loss and either gross distortion or asymmetry of one or more feature or paired set of features, or pain and/or instability.

3. Since October 12, 2020, the evidence has demonstrated that the Veteran's service-connected right upper extremity radiculopathy has been most closely approximated by mild incomplete paralysis of the middle radicular group of nerves.

4. Since October 12, 2020, the evidence has demonstrated that the Veteran's service-connected left upper extremity radiculopathy has been most closely approximated by mild incomplete paralysis of the middle radicular group of nerves.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5242.

2. The criteria for entitlement to a compensable rating for the Veteran's service-connected neck scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.118, Diagnostic Codes 7800, 7804.

3. The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8511.

4. The criteria for entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8511.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1989 to July 1992.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The law creates a new framework for veterans dissatisfied with the United States Department of Veterans Affairs' (VA) decision on their claims to seek review, and this decision has been written consistent with the new AMA framework.

In the August 5, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Board of Veterans' Appeals' (Board) Hearing docket. A Board hearing was held on March 25, 2025. A copy of the hearing transcript is substantially complete and has been associated with the electronic claims file.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board cannot consider it in this decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

An inferred claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised in conjunction with the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In a separate Board decision under docket number 210729-176032, the Veteran has been awarded entitlement to a TDIU for the entire period on review for the increased rating claims on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). Consequently, the Veteran's TDIU claim within the scope of this appeal has been fully resolved.

Under 38 U.S.C. § 7104, Board decisions must be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on review and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra.

Increased Rating Claims

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Veteran's entire history is to be considered when making disability evaluations, the present level of disability close to or during the period on review is of primary concern. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1995); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4
applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations 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).

1. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability is denied.

During the period on review, which begins on October 12, 2020, the Veteran was in receipt of a 20 percent rating for his service-connected cervical spine disability under Diagnostic Code 5242-5243, 38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), an evaluation of 20 percent is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

The February 2021 regulatory changes did not substantively impact the criteria in the General
is warranted for unfavorable ankylosis of the entire cervical spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.

The February 2021 regulatory changes did not substantively impact the criteria in the General Formula. Instead, they altered the requirements for assignment of Diagnostic Codes 5242 and added a new Diagnostic Code 5244 for "traumatic paralysis, complete." Diagnostic Code 5242 was revised to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome."

The Board observes that the Veteran's disability has been labeled as intervertebral disc syndrome (IVDS) of the cervical spine. Diagnostic Code 5243 applies to IVDS, and thus, consideration shall be given to the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides ratings from 10 percent to 60 percent based on the duration of incapacitating episodes over a previous 12-month period. The February 2021 regulatory changes did not substantively impact this rating formula; instead, Diagnostic Code 5243 was revised from "Intervertebral disc syndrome" to "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The phrase "incapacitating episodes" is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."

The evidence of record does not demonstrate that the Veteran's cervical spine disability has ever resulted in incapacitating episodes with acute signs and symptoms requiring bed rest prescribed by a physician during the period on review. Thus, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes has no application in this appeal and there is no evidence supporting a higher rating under these criteria. The Board's forthcoming analysis shall focus on whether the evidence supports a rating in excess of 20 percent under the General Formula during the period on review.

VA treatment records from January 2020 and October 2020 indicate that normal range of motion was observed in the neck upon physical examination. Private treatment records from November 2020 documented limited range of motion in the neck, but specific degrees of limitation were not provided.

The Veteran underwent an anterior cervical discectomy and fusion in December 2020 at C4-5, C5-6, and C6-7. There is no probative evidence that this procedure required convalescence for at least one month or resulted in severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). Thus, a total rating under 38 C.F.R. § 4.30 is not for application.

Private physical therapy records from January 2021 documented partial range of motion findings, but cervical flexion was not tested.

The Veteran attended a VA neck examination in May 2021. The Board notes that the examiner marked the Veteran's right hand as dominant, but this is inconsistent with the other evidence of record. The Veteran described his symptoms as hand and arm cramps, shoulder cramps, neck stiffness, and numbness and tingling in the hands. He stated that he had difficulty driving, writing, holding onto things, and raising his arms about the shoulders. He described flare-ups multiple times per day, precipitated by writing, driving, grabbing, lifting, and doing housework. The flare-ups were relieved by stopping the triggering activity and shaking and massaging the hands and fingers. He stated he could no longer work as a carpenter.

Active and passive range of motion testing showed forward flexion of the cervical spine limited to 35 degrees and pain was noted on examination. Range of motion itself did not contribute to a functional loss. There was no evidence of pain with weight-bearing or nonweight-bearing. There was no evidence of crepitus, localized tenderness, or pain on palpation of the joint or associated soft tissue. Repetitive use testing was performed and following at least 3 repetitions there was no additional limitation of motion. The examination was not performed immediately following repeated use over time or during a flare-up, but based on the procured data, the examiner estimated that pain would result in forward flexion of the cervical spine being limited to 30 degrees during such circumstances. The Veteran did not exhibit guarding or localized tenderness, and his muscle spasms did not result in abnormal gait or abnormal spinal contour. There was no ankylosis of the cervical or entire spine. The Veteran was noted to have cervical spine IVDS, but it did not result in any incapacitating episodes.

The Veteran appeared at October 2022 and November 2023 VA neurology visits where he was assessed with cervical dystonia. On examination, he had difficulty turning his head, as he had significant tightness of his levator scapulae and scalene muscles. Specific degrees of cervical range of motion limitation were not listed.

At the March 2025 Board hearing, the Veteran's attorney argued that the range of motion limitations noted at the May 2021 VA examination did not reflect his actual level of disability, particularly during flare-ups or with repeated use over time. The attorney did not cite evidence showing cervical range of motion more limited than what was exhibited at the May 2021 VA examination, and his argument was conclusory without adequate explanation or supporting evidence. Consequently, the Board finds the argument to be without merit and not adequately supported by the objective findings in the file. The Veteran testified that he could only move his neck halfway to the shoulder. This testimony is of limited probative value, as the Board is without the expertise to translate his statements into range of motion estimates and the fact that he could move his neck demonstrates no ankylosis of the cervical spine or its functional equivalent.

Having fully reviewed the electronic claims file within the evidentiary window parameters and in light of the above relevant evidence, the Board finds that the Veteran's service-connected cervical spine disability did not result in forward flexion of the cervical spine limited to 15 degrees or less or ankylosis (favorable or unfavorable) of the entire cervical spine or the entire spine during the period on review. Likewise, the Veteran has not alleged, and the evidence does not show, that his cervical spine disability has been manifested by the functional equivalent of ankylosis during the period on review. See Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). Thus, since October 12, 2020, the evidence does not support a disability rating in excess of 20 percent for the Veteran's service-connected cervical spine disability under Diagnostic Code 5242, 38 C.F.R. § 4.71a, and the General Formula.

The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 780-82 (2021). The Veteran's appeal seeking a disability rating in excess of 20 percent for his cervical spine disability is denied.

2. Entitlement to a compensable rating for the Veteran's service-connected neck scar is denied.

During the period on review, the Veteran has been assigned a noncompensable rating for his service-connected neck scar under Diagnostic Code 7800, 38 C.F.R. § 4.118.

Under Diagnostic Code 7800, a 10 percent rating is assigned when the evidence probatively shows burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck are manifested by one characteristic of disfigurement.

A higher evaluation of 30 percent is warranted under Diagnostic Code 7800 for burn scar(s), scar(s) due to other causes, or other
neck scar is denied.

During the period on review, the Veteran has been assigned a noncompensable rating for his service-connected neck scar under Diagnostic Code 7800, 38 C.F.R. § 4.118.

A higher evaluation of 30 percent is warranted under Diagnostic Code 7800 for burn scar(s), scar(s) due to other causes, or other disfigurement of the head, face, or neck where the probative evidence shows: (1) two or three characteristics of disfigurement; or, (2) visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips).

A higher evaluation of 50 percent is warranted under Diagnostic Code 7800 for burn scar(s), scar(s) due to other causes, or other disfigurement of the head, face, or neck where the probative evidence shows: (1) four or five characteristics of disfigurement; or, (2) visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips).

The maximum schedular evaluation of 80 percent is warranted under Diagnostic Code 7800 for burn scar(s), scar(s) due to other causes, or other disfigurement of the head, face, or neck where the probative evidence shows: (1) six or more characteristics of disfigurement; or, (2) visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips).

The eight characteristics of disfigurement, for purposes of evaluation under 38 CFR §4.118 are: scar 5 or more inches (13 or more cm) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39cm2); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 cm2); underlying soft tissue missing in an area exceeding six square inches (39 cm2); and, skin indurated and inflexible in an area exceeding six square inches (39 cm2). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation.

Diagnostic Codes 7801 and 7802 are not for application because they apply to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck. The Veteran's service-connected scar on appeal is limited to the neck.

Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a maximum 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Code 7800 may also receive an evaluation under Diagnostic Code 7804, when applicable.

The Veteran appeared at a September 2020 VA scar examination; however, the examination was targeted to assessing the scar related to the Veteran's iliac crest bone graft. The disability benefits questionnaire did not contain any relevant information regarding scars impacting the head, face, or neck.

The Veteran attended another VA scar examination in April 2021; however, the examination was targeted to assessing the scars in the mid thoracic and lumbar portions of the spine. The disability benefits questionnaire did not contain any relevant information regarding scars impacting the head, face, or neck.

The Veteran attended a final VA scar examination in May 2021. The examiner noted that the Veteran had a neck scar related to spinal fusions performed in 199
applicable.

The Veteran attended a final VA scar examination in May 2021. The examiner noted that the Veteran had a neck scar related to spinal fusions performed in 1999 and December 2020. The scar was not painful or unstable with frequent loss of covering of the skin over the scar. The scar on the left anterior side of the neck measured 5.5 cm x 0.2 cm and was not manifested by elevation, depression, adherence to the underlying tissue or missing underlying soft tissue. There was no abnormal pigmentation or texture. There was no gross distortion or symmetry of facial features or visible or palpable tissue loss. The scar did not result in limitation of function.

At the March 2025 Board hearing, the Veteran alleged that his surgical neck scar can get raised and dry resulting in itchiness, pain, and redness from the scratching. He stated that tight clothes can irritate the scar.

The evidence does not show that the Veteran's surgical neck scar was manifested by any characteristics of disfigurement or with visible or palpable tissue loss and either gross distortion or asymmetry of one or more features or paired set of features. Consequently, a compensable rating under Diagnostic Code 8000 is not warranted during the period on review.

While the Veteran testified to pain and irritation on his surgical neck scar, no objective signs of pain or instability of the scar were noted at the March 2021 VA examination, and despite thousands of treatment records, no reports of a painful or unstable scar were ever mentioned to the Veteran's treating physicians, including his pain management providers, who specialize in assessing and treating painful conditions of the body. Given the Veteran's propensity to report pain elsewhere in the body, especially to treatment providers whose sole purpose are to evaluate and treat pain, the Board finds it reasonable to expect that if the Veteran's scar was as painful as alleged at the hearing, he would have brought the issue up with his treatment providers and such reports and findings would have been included in their treatment records. The absence of this expected evidence, in combination with the May 2021 VA examination findings are probative in this appeal and outweigh the Veteran's hearing testimony. Moreover, in the 90-day post-hearing evidentiary window, the Veteran did not submit any evidence rebutting the findings of the May 2021 VA examination or showing complaints of or treatment for scar-related pain from his medical providers. Overall, the evidence does not probatively support a compensable disability rating for the Veteran's service-connected neck surgical scar during the period on review.

The evidence is not in approximate balance and persuasively weighs against the Veteran's claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch, 21 F.4th at 780-82. The appeal seeking a compensable rating for the Veteran's service-connected neck surgical scar is denied.

3. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected right upper extremity radiculopathy is denied.

4. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left upper extremity radiculopathy is denied.

During the period on review, the Veteran is in receipt of separate 20 percent ratings for mild incomplete radiculopathy impacting the middle radicular group in each upper extremity under Diagnostic Code 8511, 38 C.F.R. § 4.124a.

Under Diagnostic Code 8511, which rates based on paralysis of the middle radicular group, a 20, 40, or 50 percent rating is warranted for mild, moderate, or severe incomplete paralysis impacting the major extremity, respectively, whereas a 20, 30, or 40 percent rating is warranted for mild, moderate, or severe incomplete paralysis impacting the minor extremity, respectively. Where there is complete paralysis of the middle radicular group as demonstrated by adduction, abduction, and rotation of arm, flexion of elbow, and extension of the wrist being lost or severely affected, a 70 percent rating is warranted for the major extremity, and a 60
.R. § 4.124a.

When rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neither the Veteran nor his attorney have challenged the use of Diagnostic Code 8511 to rate his bilateral upper extremity radiculopathy.

Pursuant to VA regulation, only one extremity is considered dominant, which will be determined by the evidence of record or by VA testing. 38 C.F.R. § 4.69. As such, in evaluating an upper extremity disability, it is necessary to distinguish between the predominant, or major, upper extremity and the minor upper extremity, as such distinction may affect the criteria for a particular level of impairment. Id. Here, the evidence of record most reliably demonstrates that the Veteran is left-handed, and thus, the left upper extremity is the major extremity, and the right upper extremity is the minor extremity for rating purposes.

The words "mild," "moderate," and "severe" as used in Diagnostic Code 8511 are not defined in the VA Schedule for Rating Disabilities. Thus, the Board turns to VA's M-21-1 Adjudication Manual for additional guidance on the meaning of these terms. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) (The Board "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases"). The M21-1 describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." Part V, sbpt. iii, ch. 12, sec. A.2.c. Moderate incomplete paralysis, per the M21-1, should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. M21-1 examples of a moderate disability include "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate." Id. A severe rating is warranted where the evidence shows motor and/or reflex impairment at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Id.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration, and when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; see also 38 C.F.R. § 4.123 (indicating neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe, incomplete paralysis); 38 C.F.R. § 4.124 (indicating neuralgia characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated with a maximum equal to moderate incomplete paralysis).

In April 2020 VA treatment records, it was noted that the Veteran had recently had a spinal cord stimulator placed on the lumbar spine and his neck symptoms started to worsen and radiate to the left upper extremity, worse than the right upper extremity.

In a June 2020 statement to the Social Security Administration, the Veteran reported a stabbing pain and numbness in the neck, shoulders, arms, and hands, and he stated he could not lift more than 5 pounds without dropping the objects.

In a July 2020 VA treatment record, it was noted that the Veteran continued to have neck pain radiating to the left upper extremity
nerve, is to be rated with a maximum equal to moderate incomplete paralysis).

In a July 2020 VA treatment record, it was noted that the Veteran continued to have neck pain radiating to the left upper extremity worse than the right upper extremity, and he tended to drop objects but otherwise did not show any dexterity or balance issues.

The Veteran attended a September 2020 VA peripheral nerves examination that was largely focused on the Veteran's lumbar radiculopathy; however, the examination yielded relevant information regarding the Veteran's bilateral upper extremity radiculopathy. There was no evidence of constant pain, intermittent pain, paresthesias or dysesthesias, or numbness in the bilateral upper extremities. Muscle strength testing was normal (5/5) with elbow flexion, elbow extension, wrist flexion, wrist extension, gripping, and pinching in both upper extremities. There was no muscle atrophy. Deep tendon reflexes were hypoactive (+1) in the biceps, triceps, and brachioradiales in both arms. Light touch sensory testing was normal in the bilateral shoulder areas, inner/outer forearms, and hands/fingers. There were no trophic changes. The examiner noted that the Veteran could not lift, push, or pull more than 50 pounds, although this limitation was attributed to back and bilateral leg pain versus his cervical radiculopathy.

In private treatment records from September 2020, the Veteran reported pain and numbness in the upper extremities, radiating on the inside of the arms, the top of the arms, and on the back of the arms.

Private treatment records from November 2020 documented good strength in the hands, but sensation slightly decreased in the medial aspect bilaterally. There were positive Tinel's signs bilaterally, left more sensitive than the right over the ulnar nerve. Reflexes were brisk and noted as 2+ in the biceps and 1+ in the triceps bilaterally. The Veteran complained of bilateral upper extremity pain, numbness, weakness, and tingling. He reported pain in his shoulders and his elbows and most of his fingers. He experienced tingling numbness mostly in the medial aspect of the hands, left worse than right. He reported dropping things and had trouble maintaining dexterity, left worse than right.

Nerve conduction/electromyography (EMG) testing of the upper extremities in December 2020 did not show any significant radiculopathy or peripheral neuropathy, and results were within normal limits.

The Veteran attended another VA peripheral nerves examination in April 2021 that was largely focused on the Veteran's lumbar radiculopathy; however, the examination yielded relevant information regarding the Veteran's bilateral upper extremity radiculopathy. There was no evidence of constant pain, intermittent pain, paresthesias or dysesthesias, or numbness in the bilateral upper extremities. Muscle strength testing was normal (5/5) with elbow flexion, elbow extension, wrist flexion, wrist extension, gripping, and pinching in both upper extremities. There was no muscle atrophy. Deep tendon reflexes were normal (+2) in the biceps, triceps, and brachioradiales in both arms. Light touch sensory testing was normal in the bilateral shoulder areas, inner/outer forearms, and hands/fingers. There were no trophic changes. The nerves in both upper extremities were deemed clinically normal.

Private physical therapy records from January 2021 showed normal muscle strength (5/5) in both arms with elbow flexion, wrist flexion, and wrist extension. Muscle strength with shoulder abduction in both arms was slightly diminished and objectively graded as 4-/5. Dermatome testing was within normal limits in all areas tested relevant to the cervical spine.

At a VA neck examination performed in May 2021, muscle strength was recorded as normal (5/5) with bilateral elbow and wrist extension and flexion and bilateral finger flexion and abduction. There was no muscle atrophy. Deep tendon refluxes were normal (2+) in the bilateral biceps, triceps, and brachioradiales. Sens
physical therapy records from January 2021 showed normal muscle strength (5/5) in both arms with elbow flexion, wrist flexion, and wrist extension. Muscle strength with shoulder abduction in both arms was slightly diminished and objectively graded as 4-/5. Dermatome testing was within normal limits in all areas tested relevant to the cervical spine.

At a VA neck examination performed in May 2021, muscle strength was recorded as normal (5/5) with bilateral elbow and wrist extension and flexion and bilateral finger flexion and abduction. There was no muscle atrophy. Deep tendon refluxes were normal (2+) in the bilateral biceps, triceps, and brachioradiales. Sensory examination was normal in both shoulder areas, inner/outer forearms, and hands/fingers. The Veteran reported no constant pain, but moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in both upper extremities. The examiner assessed the Veteran with neurological impairment involving the C7 nerve root (middle radicular group) in both arms.

At the March 2025 Board hearing, the Veteran's attorney argued that the Board should disregard the objective evidence of record and award a higher rating based on moderate symptoms due simply to the Veteran's lay reports to the May 2021 VA examiner that he experienced moderate symptoms in both upper extremities. The Veteran testified that he experienced a weak heavy feeling from his elbows down in both arms, with a lot of prickly feelings and shocks in the arms. He also described loss of feeling in the hands and dropping objects. He testified that he struggled with fine motor skills and had a difficult time managing buttons on clothing. He also described cramping in his hands when typing. The Veteran described occupational limitations stating that he could no longer work as a carpenter because of his inability to effectively use his carpentry tools.

In May 2022, the Veteran underwent an EMG/nerve conduction study to assess complaints of a burning pain in his upper arms, aching pain in digits 3 to 5 bilaterally, with stabbing pain on the dorsum of the hand, and his propensity to drop objects all the time. The results were normal and showed no electrodiagnostic evidence of a mononeuropathy, a polyneuropathy, a brachial plexopathy, or a cervical radiculopathy in either arm.

VA treatment records from October 2022 documented physical findings of normal muscle strength in all areas tested in the bilateral upper extremities, normal motor findings, normal deep tendon reflexes, and intact sensation to light touch.

VA pain management treatment records from August 2023 and November 2023 included neurological examination findings which showed normal muscle strength in all 4 limbs and symmetric and normal reflexes.

The Veteran appeared at October 2022 and November 2023 VA neurology visits where physical examination findings showed normal motor results with strength objectively intact and symmetric in both arms. Finger tapping was symmetric. Muscle strength was normal (5/5) in all areas tested in both arms and no muscle atrophy was noted. Deep tendon reflexes were normal (2/2) in the bilateral biceps, triceps, and brachioradiales. Sensation was intact to light touch in both upper extremities. No coordination abnormalities were observed.

Overall, the Board finds that the Veteran's left and right upper extremity radiculopathy has been manifested by mild incomplete paralysis of the middle radicular group of nerves in each arm consistent with the Veteran's 20 percent ratings in each extremity under Diagnostic Code 8511 during the period on review. The objective findings consistently showed normal or slightly diminished muscle strength, normal or slightly impaired reflexes, normal or slightly impaired sensation, no coordination or motor issues, no muscle atrophy, and no trophic changes in both arms. These findings most closely aligned with disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area," which correlates to mild incomplete paralysis of the middle radicular group of nerves in both arms. The Veteran did not experience severe, widespread, or absence sensation in either arm, and his motor and reflex impairment were not hyperactive. To the extent that hypoactive reflexes were noted or muscle strength findings were slightly impaired, these were isolated findings and more often than not, testing showed normal results. The severity, frequency, and duration were more consistent with a mild degree of disability during the period on review.

The Board acknowledges the Veteran's reports of pain, numbness, and dropping items, but these accounts are not accompanied by neurological findings that correlate with these reports. As noted above, deep tendon reflexes, sensation, and muscle strength were more typically normal or slightly diminished. Additionally
icular group of nerves in both arms. The Veteran did not experience severe, widespread, or absence sensation in either arm, and his motor and reflex impairment were not hyperactive. To the extent that hypoactive reflexes were noted or muscle strength findings were slightly impaired, these were isolated findings and more often than not, testing showed normal results. The severity, frequency, and duration were more consistent with a mild degree of disability during the period on review.

The Board acknowledges the Veteran's reports of pain, numbness, and dropping items, but these accounts are not accompanied by neurological findings that correlate with these reports. As noted above, deep tendon reflexes, sensation, and muscle strength were more typically normal or slightly diminished. Additionally, the Veteran underwent EMG and nerve conduction testing on two occasions, and the results did not show radiculopathy in the upper extremities. In assessing the severity of the Veteran's disability, the Board has considered the Veteran's accounts but finds them to be outweighed by the objective findings of record, which show no worse than a mild degree of incomplete paralysis in the left and right arm middle radicular groups. The Veteran's attorney's argument requesting greater consideration be provided to the Veteran's subjective lay accounts must be rejected.

The evidence is not in approximate balance and persuasively weighs against the Veteran's claims. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch, 21 F.4th at 780-82. The appeals seeking entitlement to disability rating in excess of 20 percent for each upper extremity based on radiculopathy are denied.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Galante, 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.

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