Citation Nr: 1311449 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 00-19 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left upper extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to February 1972, and from December 1980 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision that granted service connection for radiculopathy of the left upper extremity, and assigned a 20 percent evaluation, effective August 29, 2005, the date of receipt of the Veteran's claim. A March 2006 rating action assigned September 26, 2003 as the proper effective date. The Veteran disagreed with the effective date, and by decision dated June 2011, the Board assigned September 23, 2002, as the proper effective date for the award and evaluation of radiculopathy of the left upper extremity. The underlying claim for a higher rating for this disability was remanded to ensure due process. In August 2012, the Board again remanded the claim. The case is again before the Board for appellate consideration. In its August 2012 decision, the Board also denied the Veteran's claim for an initial evaluation in excess of 10 percent for residuals of a fracture of the left patella, with osteoarthritis of the left knee, based on limitation of motion. This decision, accordingly, is limited to the issue set forth on the preceding page. By rating action dated January 2013, the RO granted a total rating based on individual unemployability due to service-connected disability. FINDING OF FACT The Veteran's radiculopathy of the left upper extremity is manifested by mild pain and weakness, and is not productive of more than moderate impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in May 2004, December 2005, March 2006 and February 2009 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include private and VA medical records, and VA examination reports. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disabilities at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Increased rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App 505 (2007). A 90 percent evaluation may be assigned for complete paralysis of the radicular group of the major extremity. A 70 percent rating may be assigned for incomplete paralysis which is severe and a 40 percent rating is assignable when the paralysis is moderate. When mild, a 20 percent evaluation may be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Initially, the Board notes there is some conflict in the record as to which is the Veteran's dominant hand. In this regard, the Board points out that on report of medical history forms in March 1974, April 1978, December 1980, March 1984, and October 1985, the Veteran indicated he was left-handed. It was also reported on a VA examination in December 2005 that he was left-handed. However, a VA examination of July 2002 noted the Veteran was right-handed. In addition, it was stated he was right-handed and ambidextrous on a July 2003 VA examination. Under the circumstances, the Board finds the Veteran is left-handed. See 38 C.F.R. § 4.69 (2012). The Veteran was afforded a peripheral nerves examination by the VA in July 2002. He related he has weakness of left hand grip and numbness into the left hand. He also stated he had significant pain on movement of the left upper extremity. He was on medication for pain management. An examination revealed power of the left upper extremity was 4+/5 in the deltoid, biceps and triceps. Wrist flexors and extensors were 5/5. Hand grip was 4/5. Movement of the deltoid, biceps and triceps was impaired due to pain. There was decreased sensation in the glove stocking manner for pinprick, vibration, pressure and light touch below the elbow and into the left upper extremity. It was reported a nerve conduction study of the left upper extremity at a private facility in 2002 was normal. The diagnosis was left cervical radiculopathy versus cervical radiculitis. The examiner stated the Veteran had significant pain due to the left cervical radiculopathy, as well as the moderate weakness from it. The Veteran was seen by a private physical therapist in August 2005. It was reported he had left upper extremity weakness and pain. Sensation was impaired in the left lateral forearm and the left thumb. The Veteran was again afforded a peripheral nerves examination by the VA in October 2005. An examination disclosed decrease in light touch sensation in the C6 and C7 distribution. There was weakness of handgrip, but no atrophy or fasciculation of the muscles. Tendon reflexes were brisk at the brachioradial, biceps and triceps. The impression was the clinical findings supported radiculopathy at C6 and C7. A VA neurological examination was conducted in February 2009. The Veteran reported difficulty with his left arm. He said his arm is numb and cold, and that it remains weak. An examination demonstrated no muscle atrophy or weakness. Primary sensation revealed a decrease in monofilament light touch in the distribution of the left C7 dermatome. The diagnosis was left C7 radiculopathy consistent with the Veteran's history of cervical spondylosis. The Veteran was seen at a private facility for neck pain in March 2009. An examination of the left upper extremity showed no muscle or joint tenderness to palpation. Muscle strength of the major groups was 5/5. The tone of the major groups was normal. There was no atrophy or fasciculations. Touch and pressure were intact on the left side. Reflexes at the biceps, triceps and brachioradialis were 2+/4+. In an October 2009 addendum to the February 2009 VA examination, a VA nurse practitioner concluded that in light of a review of the claims folder, the diagnosis should be changed to cervical degenerative disc disease with surgical fusion with left cervical radiculopathy of the C7 dermatome. An electromyogram of the left upper extremity at a VA facility in November 2009 was normal. The Veteran was afforded a VA examination of the cervical spine in January 2012. He reported decreased grip in the left arm with radiculopathy in the ulnar distribution. It was indicated he had undergone an electromyogram that was normal and did not reveal neuropathy. An examiner showed that muscle strength testing was normal. No muscle atrophy was present. Reflexes and sensation were normal in the left upper extremity. The examiner indicated the Veteran had radicular pain in the left upper extremity. It was described as intermittent and mild. The Veteran did not have numbness. The severity of the radiculopathy was said to be mild. VA outpatient treatment records disclose the Veteran was seen in February 2012. Muscle strength was normal on neurological evaluation. The assessments were cervical radiculopathy and arthritis. It was indicated the Veteran was followed by a non-VA pain clinic and was to see a neurosurgeon soon. The record establishes the Veteran's left upper extremity radiculopathy is primarily manifested by pain and decreased grip strength. The Board acknowledges the July 2002 VA examination demonstrated pain on movement of the deltoid, biceps and triceps, and that the Veteran had decreased sensation. The October 2005 VA examination revealed weakness and decreased sensation, but no atrophy. Although the Veteran claimed weakness of the left arm on VA examination in February 2009, the examination showed no weakness or atrophy. There was some decrease in sensation. The most recent VA examination, conducted in January 2012, documented only mild pain, and noted that an electromyogram in November 2009 was normal. In order to assign a higher rating, the evidence must show moderate impairment. The evidence of record does not support such a finding. The Board acknowledges the Veteran was noted to have significant pain and moderate weakness on VA examination in July 2002, a nerve conduction study that year was normal. There is no indication of atrophy on the subsequent VA examinations. Indeed, the most recent VA examination reflects that muscle strength testing was normal, as were reflexes and sensation. The Board concedes the Veteran is competent to report symptoms he experiences, such as pain and weakness, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that his left upper extremity radiculopathy has increased in severity, so as to warrant a rating in excess of 20 percent. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his radiculopathy of the left upper extremity. The Board finds, therefore, that the preponderance of the evidence is against the claim for an initial evaluation in excess of 20 percent for his service connected left upper extremity radiculopathy. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's left upper extremity radiculopathy, to include pain and weakness, are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 20 percent for radiculopathy of the left upper extremity is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs