Citation Nr: 1323292 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-31 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a rating higher than 20 percent rating for radiculopathy of the left upper extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1993 to August 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decision in January 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). Other Preliminary Matters After the Veteran filed a notice of disagreement to the rating decision in March 2008, denying a rating higher than 30 percent for disability of the cervical spine, the RO issued a statement of the case on June 15, 2009. The Veteran then filed a substantive appeal that was received at the RO on August 25, 2009. In October 2009, the RO notified the Veteran that the substantive appeal was not timely and treated the August 25, 2009, filing as new claim for increase. In April 2010, the RO denied the new claim for increase. At the hearing before the Board, in October 2010, the Veteran expressed disagreement with the rating decision in April 2010, denying a rating higher than 30 percent for the disability of the cervical spine, which constituted a timely notice of disagreement to that rating decision. In its remand in November 2010, the Board directed the RO to notify the Veteran that he had the right to appeal the timeliness of filing the substantive appeal in August 2009. The Board also directed the RO to furnish the Veteran a statement of the case on the new claim for increase denied in the rating decision in April 2010. In a letter in February 2012, the RO notified the Veteran of his right to appeal the timeliness of the filing of his substantive appeal, following the statement of the case issued in June 2009. In May 2011, the RO issued a statement of the case on the new claim for increase denied in the rating decision in April 2010. The Veteran was notified that he had 60 days from the date of the notice to perfect an appeal of the claim. As the Veteran did not respond to the notification about the timeliness of the filing of the substantive appeal, following the statement of the case in June 2009, and as the Veteran did not file a substantive appeal, following the issuance of the statement of the case in May 2011, the Board does not have appellate jurisdiction of either the timeliness of filing of the substantive appeal or the new claim of increase for a disability of the cervical spine. In November 2010, the Board remanded the claim for increase for radiculopathy of the left upper extremity for further development. As the development was completed, no further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Radiculopathy of the left upper extremity involves the minor extremity and is manifested by no more than moderate incomplete paralysis of the median nerve. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided post-adjudication VCAA notice by letter dated in May 2009. The VCAA notice included the type of evidence needed to substantiate a claim for increase. The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (pre-adjudication VCAA notice). The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in May 2011. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA and private medical records. The Veteran was afforded VA examinations in January 2008, October 2008, October 2009, and March 2011 with an addendum in April 2011. As the reports of the VA examinations were based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate to rate the disability. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria Radiculopathy of the left upper extremity is rated 20 percent rating under Diagnostic Code 8515, pertaining to the median nerve. As the Veteran is right handed, the left upper extremity is the minor extremity. Under Diagnostic Code 8515, for the minor extremity, the criterion for the next higher rating, 40 percent rating, is severe incomplete paralysis of the median nerve. In rating a disability of a peripheral nerve, such as the median nerve, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. When the nerve involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating the median nerve characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, the maximum rating will equate to severe, incomplete paralysis. The maximum rating not characterized by organic changes will be for moderate incomplete paralysis. 38 C.F.R. § 4.123. In rating the median nerve characterized by dull and intermittent pain, the maximum rating will equate to moderate incomplete paralysis. 38 C.F.R. § 4.124. In this decision, the Board decides only the claim for radiculopathy of the left upper extremity. Facts In August 2007, private medical records show that the Veteran stated that he had been doing well until about one week earlier when he noticed the onset of severe neck pain and spasms and pain in the left upper extremity. The Veteran stated that had difficult moving his neck and he felt that his left upper extremity had lost some strength due to the pain. History included a cervical discectomy and fusion at C4-C5, C5-C6, and C6-C7, which was followed by removal of hardware and fusion at C7 and T1. On neurological evaluation, motor strength was 5 of 5 in the deltoids, biceps, triceps, wrist, wrist flexor, and hand. Muscle tone was normal without spasticity or flaccidity. The reflexes were 1+ at left biceps and triceps. The Hoffman's sign was negative, bilaterally, and the Babinski's sign was down going, bilaterally. There were two beats of clonus, bilaterally. The sensation was intact to light touch, and to sharp and dull discrimination. In January 2008 on VA examination, the Veteran described chronic neck pain and pain radiating to his left shoulder and upper extremity. He complained of weakness in his left hand and numbness in the left upper extremity down his arm and along the long and little fingers. The Veteran stated that he worked as a postal worker and that he was on permanent light duty. He stated that he worked at the counter, and that he had a lifting restriction of not more than 10 pounds. The Veteran stated that he dropped things due to weakness in his left hand. The VA examiner reported 4.5 of 5 strength with abduction of the left shoulder at 90 degrees, 4.5 of 5 strength with gripping, and that the Veteran could hold two pounds weights in his hand without problems. The VA examiner indicated that the Veteran had decreased sensation of painful stimuli in the left upper extremity. The reflexes to the bicep tendons were 1+. In June 2008, the Veteran underwent a cervical discectomy and osteophyte removal at C3-C4, a cervical fusion at C3-C4, and cervical plating at C3-C4 In August 2008, it was noted that the Veteran had persistent symptoms, but overall he had recovered reasonably well. In October 2008 on VA examination, the Veteran complained of chronic neck pain with radiating pain to the shoulders. The Veteran stated that he had weakness in his left hand and numbness of the left arm. The Veteran stated that he worked at a post office and that he worked in management and that he was able to sit down quite a bit which helped. He stated that he was still on a ten-pound lifting restriction. The Veteran reported that he was independent in his activities of daily living. The VA examiner reported that grip strength on the left was 4.5 of 5 otherwise strength to the upper extremities was 5 of 5. The VA examiner stated that the Veteran had decreased sensation to painful stimuli in the left hand. The reflexes to the bicep tendons were 1+. In October 2009 on VA examination, the Veteran described chronic neck pain, radiating to both shoulders and down his left arm. The Veteran indicated that he was a manager at a post office for thirty years and that he was a mechanic for a number of years. He stated that he had to change to a more sedentary job due to his neck condition and that he was on a 10-pound lifting restriction. He stated that he was able to perform his activities of daily living independently, but was unable to perform any heaving lifting and that he had special mirrors on his vehicle, because he was unable to turn his head. The Veteran stated that he dropped things in his left hand because of weakness. The VA examiner reported that grip strength was 4.5 of 5 and 4.5 of 5 with abduction of left shoulder otherwise strength in the upper extremities was 5 of 5. The VA examiner reported that the Veteran had decreased sensation to painful stimuli in the left hand along the long, ring, and little fingers. The VA examiner reported that reflexes to the biceps tendons were 1+, bilaterally. There was no muscle atrophy. In March 2011 on VA examination, the VA examiner report that the Veteran had left arm weakness and tingling and numbness from the left elbow to the hand. The Veteran stated that he dropped things in his left hand due numbness and weakness. The VA examiner reported that the reflexes were 2+ at the biceps, triceps, brachioradialis, and finger. On sensory evaluation, vibration, position sense, and light touch were normal on the left side. The VA examiner stated that sensation to pain and pinprick was decreased mainly in the anterior forearm and hand. For motor function of the left upper extremity, elbow flexion, elbow extension, wrist flexion and wrist extension, finger flexion, finger abduction, and thumb opposition, were all 4 of 5. The VA examiner indicated that there was no muscle atrophy, imbalance or tremor, or any evidence of fasciculations. The VA examiner indicated that the joints were not affected. The VA noted that the Veteran worked fulltime at a post office. The VA examiner stated that nerve dysfunction, as well as neuritis and neuralgia, were present. The VA examiner reported that the effects on the Veteran's occupation were that he was assigned different duties and that he had increased absenteeism. As to effects on occupational activities, the VA examiner stated that the Veteran had problems with lifting, carrying, and reaching as well as weakness or fatigue, decreased strength, and upper extremity pain. In March 2011, the results of electromyography were left chronic C7 radiculopathy with no electrodiagnostic evidence of brachial plexopathy or entrapment neuropathy. In an addendum in April 2011, after a review of the electromyography, the VA examiner stated that the diagnostic testing and clinical findings were best described as moderate incomplete paralysis of the affected nerve. Analysis Under Diagnostic Code 8515, for the minor extremity, the criterion for the next higher rating, 40 percent rating, is severe incomplete paralysis of the median nerve. On VA examination in March 2011, the VA examiner stated that neuritis and neuralgia of the median nerve were present. Under 38 C.F.R. § 4.123, for neuritis, the criteria for severe, incomplete paralysis are loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, which is the maximum rating. The maximum rating not characterized by organic changes is the rating for moderate incomplete paralysis. As the criteria are listed in the conjunctive by use of the word "and," but not successive, not all of the criteria need be present to warrant the higher rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive versus the non-successive nature of Diagnostic Codes). Under 38 C.F.R. § 4.124, for neuralgia, the criteria for moderate incomplete paralysis are dull and intermittent pain, which is the maximum rating. Throughout the appeal period, radiculopathy of the median nerve of the left upper extremity has been manifested by pain, paresthesia or numbness, decreased sensation, and decreased strength or weakness or fatigue in the left hand, including decreased grip strength. As for loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, on neurological evaluation in August 2007, motor strength was 5 of 5 in the deltoids, biceps, triceps, wrist, wrist flexor, and hand. Muscle tone was normal without spasticity or flaccidity. The reflexes were 1+ at left biceps and triceps, that is, present with reinforcement, and sensation was intact to light touch, and to sharp and dull discrimination. On VA examinations in January 2008, October 2008, and in October 2009, the findings included 4.5 of 5 strength with abduction of the left shoulder, 4.5 of 5 strength with gripping, the Veteran could hold two pounds weights in his hand without problems, the reflexes were 1+ (present only with reinforcement). There was no muscle atrophy. There was decreased sensation with painful stimuli. In March 2011 on VA examination, the reflexes were 2+ at the biceps, triceps, brachioradialis, and finger (normal). On sensory evaluation, vibration, position sense, and light touch were normal on the left side. The VA examiner stated that sensation to pain and pinprick was decreased mainly in the anterior forearm and hand. For motor function of the left upper extremity, elbow flexion, elbow extension, wrist flexion and wrist extension, finger flexion, finger abduction, and thumb opposition, were all 4 of 5. The VA examiner indicated that there was no muscle atrophy, imbalance or tremor, or any evidence of fasciculations. As for the effects on occupational activities, the VA examiner stated that the Veteran had problems with lifting, carrying, and reaching as well as weakness or fatigue, decreased strength, and upper extremity pain. In March 2011, the results of electromyography were radiculopathy with no electrodiagnostic evidence of brachial plexopathy or entrapment neuropathy. In an addendum in April 2011, after a review of the electromyography, the VA examiner stated that the diagnostic testing and clinical findings were best described as moderate incomplete paralysis of the affected nerve. Throughout the appeal period, there is no evidence of loss of reflexes or muscle atrophy. There is evidence of sensory disturbance with painful stimuli, but vibration, position sense, light touch, and sharp and dull discrimination were normal and electrodiagnostic testing showed no brachial plexopathy or entrapment neuropathy. While the Veteran does experience pain, the pain described in record is closer to constant dull pain than constant pain, excruciating at times. To this extent, the Board places greater weight on the objective findings of the examinations than the Veteran's subjective complaints of pain. As for a rating under 38 C.F.R. § 4.124, the maximum rating for neuralgia equates to moderate incomplete paralysis, which for the median nerve of the minor extremity is 20 percent, which equates to the current rating. A separate rating under 38 C.F.R. § 4.124 would be pyramiding, which is not permitted. 38 C.F.R. § 4.14 (pyramiding is rating the same manifestation, pain, of a disability, under different Diagnostic Codes, which is to be avoided). And lastly, the VA examiner stated that the clinical findings and the diagnostic testing were best described as moderate incomplete paralysis of the affected nerve. There is no evidence that characterizes the median nerve as severe, incomplete paralysis. In the absence of evidence of the loss of reflexes or muscle atrophy and with evidence of sensory disturbance with painful stimuli, but otherwise normal vibration, position sense, light touch, and sharp and dull discrimination and by electrodiagnostic testing, and pain closer to constant dull pain than constant pain, excruciating at times, and the opinion of the VA examiner that the clinical findings and the diagnostic testing were best described as moderate incomplete paralysis of the affected nerve, the findings do not more nearly approximate under 38 C.F.R. § 4.7 or equate to severe incomplete paralysis of the median nerve under 38 C.F.R. § 4.123. As the preponderance of the evidence is against the claim for a rating higher than 20 percent for radiculopathy of the left upper extremity, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of a service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the disability level of radiculopathy of the median nerve under Diagnostic Code 8515, applying 38 C.F.R. §§ 4.123, and 4.124, and the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has not raised the claim for a total disabled rating for compensation based on individual unemployability and the claim is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER A rating higher than 20 percent for radiculopathy of the left upper extremity is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs