Citation Nr: 1343510 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 05-36 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial rating in excess of 20 percent for C7 radiculopathy involving upper radicular group, left, mild (previously rated as left upper extremity paresthesia, involving dermatome at C7). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from March 1975 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was decided by the Board in May 2011. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated February 2012, the Court granted a Joint Motion for Partial Remand and vacated the part of the decision denying an increased initial rating for the Veteran's service-connected paresthesia of the left-upper extremity. As a result, the Board remanded the claim in June 2013 for further development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In the February 2005 rating decision, the RO granted service connection for left upper extremity paresthesia, involving dermatome at C7 and assigned a 10 percent disability rating, effective January 5, 2004 (the date of receipt of claim). The Veteran appealed the initial disability rating assigned. In August 2013, the Appeals Management Center (AMC) characterized the service-connected disability as C7 radiculopathy involving upper radicular group, left, mild, and assigned a 20 percent disability rating, effective January 5, 2004. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT The Veteran's service-connected left upper extremity disability is manifested by mild incomplete paralysis of the middle radicular group. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for C7 radiculopathy involving upper radicular group, left, mild, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a and Codes 8510, 8511, 8616 (2013). 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); and Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notices were provided to the appellant in January 2004, March 2006, May 2009 and August 2009. This issue arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. With regard to the duty to assist, VA has obtained VA treatment records, reviewed the Virtual VA and VBMS files, and assisted the Veteran in obtaining evidence, afforded him adequate VA examinations. Efforts were made to obtain Social Security Administration (SSA) records, which were unavailable. In a statement signed in August 2013, the Veteran's representative noted that they had no additional evidence to submit and requested that the claim be forwarded to the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. With the exceptions noted in the schedule of ratings for neurological conditions, disability from the diseases listed and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.124a. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe or complete paralysis of peripheral nerves. Id. Under Diagnostic Codes related to diseases of the peripheral nerves, the term "incomplete paralysis," with this and other peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. VA examination reports show that he is right-hand dominant. As such, ratings for the minor extremity will be considered. In the February 2005 rating action on appeal, the RO granted service connection and assigned an initial 10 percent rating under Diagnostic Code 8616 for neuritis of the ulnar nerve. Under that Code, for the minor side, a rating of 20 percent is warranted for moderate incomplete paralysis; 30 percent for severe incomplete paralysis. A maximum rating of 50 percent for complete paralysis; the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8616. In the August 2013 rating decision, the RO assigned the 20 percent rating under Diagnostic Code 8510 for upper radicular group (fifth and sixth cervicals). Under this regulatory provision for the minor side, a 20 percent rating is warranted for mild incomplete paralysis; 30 percent warranted for moderate incomplete paralysis; and 40 percent for severe incomplete paralysis. A maximum rating of 60 percent is warranted for complete paralysis of the upper radicular group; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Also applicable is Diagnostic Code 8511 for the middle radicular group. For the minor side, a 20 percent rating is warranted for mild incomplete paralysis; 30 percent for moderate incomplete paralysis; and 40 percent for severe incomplete paralysis. A maximum rating of 60 percent is warranted for complete paralysis of the middle radicular group; adduction, abduction and rotation of arm, flexion of elbow and extension of wrist lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8511. Factual Background A February 2004 VA examination shows that reflexes of the biceps, triceps and brachioradialis reflexes were all 3+ equal (hyperactive without clonus), and active and sensory perception over each upper extremity was intact. A March 2004 private treatment record from Dr. J.C.B shows that strength and sensation were intact in the C4-T1 dermatomes and myotomes with the exception of subjective numbness in the C6-7 distribution. DTR's were 2/4 at the triceps, biceps and brachioradialis locations. A November 2004 VA neurosurgery consult shows complaints of pain that travels across the back of his shoulder. He also complained of numbness in the general area of his biceps and entire hand. It was noted that he had no radicular symptoms. Upon physical examination, muscle strength measured 5/5 (normal) for all major muscle groups. Deep tendon reflexes (DTR) were 1+ (hypoactive) bilaterally at the triceps, biceps and wrists. A December 2004 VA EMG (electromyography) Consult shows complaints of neck pain radiating down bilaterally in his upper extremities with the left being worse than the right. He complained of intermittent numbness and tingling involving the upper arms and hand digits. It was noted that there were no complaints of focal weakness. Upon physical examination, there was negative wrist compression and Tinel's Signs in the wrist and elbows. There was normal sensation to light touch and pin prick in the upper extremities. Motor strength was 5/5 (normal) in the upper extremities except for 4/5 (active movement against some resistance) finger extension at the MCP (metacarpophalangeal) joints bilaterally. DTR's showed 2/4 bilateral upper extremities. Nerve Conduction Studies and EMG were performed. The impression noted abnormal electrodiagnostic study is suggestive of mild left-sided cervical radiculopathy, likely involving the C7 nerve root; mild spontaneous activity consistent with mild denervation activity; and mild left-sided ulnar compression neuropathy at the elbow and slight left-sided median compression neuropathy at the wrist (slight left carpal tunnel syndrome). The plan/recommendations were (1) to recommend OT (occupational therapy) for instruction in left wrist range of motion exercises and use of left wrist splint at night; (2) advise the Veteran to protect the left elbow from compression injury, including use of elbow pad or cushion support; (3) if symptoms persist or progressively worsen, to consider repeat electrodiagnostic testing in 3 to 4 months; and (4) follow up with referring physician. An August 2005 VA examination shows complaints of numbness radiating down to his shoulders, arms, and hands, which tend to come and go. He denied any weakness or any radiation of pain shown into the upper extremities. He took Flexeril and Naprosyn for relief, but usually refrained for fear of damaging his liver. Upon physical examination, he had full range of motion in the elbows, wrists and fingers. Neurological examination showed 5/5 strength in the upper extremities in all muscle groups. Sensation was intact to light touch in the upper extremities in all dermatomes bilaterally. He had 1+ (hypoactive) upper reflexes bilaterally. The examiner diagnosed degenerative disk disease of the cervical spine with radiculopathy down both the right arm as well as the left arm diagnosed by EMG. A February 2006 VA EMG Consult shows complaints of intermittent numbness (more on the right side), mostly in the ulnar distribution. A July 2006 VA examination shows complaints of numbness in the hands, which first occurs in the shoulders and moves to the medial portions of his brachium and antebrachium. After prolonged periods of numbness, he experienced tingling, but no burning sensations. Upon physical examination, motor and reflex examinations were normal and a sensory examination demonstrated no hypoesthesias. Sensation was intact both to light and sharp sensation. Tinel's signs were negative bilaterally at the elbow and wrists. The examiner found no objective evidence of any neuropathies and/or nerve conduction disturbances. In a claim received in January 2007, the Veteran reported "numbness, aches and pains that are incapacitating." A January 2007 VA ortho spine surgery consultation shows neck pain that radiates from his midline neck to both shoulders and arms. He reported decreased sensation and trouble with fine motor skills in his hands. Upon physical examination, motor strength in the deltoids, biceps, triceps, wrist extension and flexion, hand grip and intrinsic were 4/5 bilaterally. The examiner noted "subjectively the patient was not working hard to provide adaquate [sic] evaluation of these tests." DTR's were 1+ (hypoactive) globally in the deltoids, biceps and triceps. Sensation in the upper extremities was normal throughout. When the Veteran was afforded a VA examination in February 2008, he reported numbness for his neck down to his fingers (not in his shoulders). He reported tingling that he would have to rub out. He did not take any alleviating medication. It was noted that the Veteran did not describe any specific monatome or dermatome or distribution. It was further noted that this is kind of a circumferential distribution encompassing the entire arm all the way down. When the Veteran was afforded a VA examination in May 2010, he complained of pain located primarily in the deltoid region of the left upper extremity. The examiner noted that the arm and forearm do not seem to be involved with the pain. The Veteran described numbness that involved all fingers of the left hand, but none in the arm or forearm. The pain presented itself nightly, and he rated his pain a 5-6 out of 10. It did not flare beyond that point. He did not have pain or numbness during the day. He discontinued moderate use of Lortab, but occasionally took Naprosyn every other day. Upon neurological examination, strength was normal throughout at 5/5, particularly throughout the left upper extremity. The examiner observed no muscle atrophy. He noted that tone and posture were normal. He noted no tremors. He observed reflexes that were slightly decreased in the left triceps at 1+ (hypoactive). All other upper extremity reflexes were 2+ (normal) and equal. On sensory examination, the Veteran claimed decreased pain sensation on the volar aspects of all fingers in both hands as well as the palms. There was some decreased pin sensation on the dorsal aspect of all fingers, but sensation in the dorsum of the hand was normal. The examiner noted no sensory loss in the upper extremities otherwise and further noted normal position and vibratory sense. The examiner noted that the signs and symptoms suggest left C7 nerve root compromise. He stated that the findings are rather subtle with slightly decreased triceps reflex on the left side and some slight evidence of denervation in the pronator teres muscle in the left upper extremity. An August 2012 VA examination shows neuritis of the ulnar nerve. The examiner noted mild numbness, but no constant or intermittent pain. He also noted no paresthesias and/or dysesthesias. Muscle strength was 5/5 (normal) in elbow flexion/extension, wrist flexion/extension, grip, and pinch (thumb to index finger). There was no muscle atrophy. DTR's and trophic changes were normal in the biceps and triceps. DTR and trophic changes for the brachoradialis were hypoactive. Sensory examination was normal for the shoulder area, inner/outer forearm, and hand/fingers (C6-8). The examiner did not check the appropriate boxes to indicate incomplete or complete paralysis. Instead, the examiner noted normal median, ulnar, musculocutaneous nerve, circumflex nerve, long thoracic nerve, and upper radicular group. The examiner noted that the Veteran did not use assistive devices. The examiner noted normal EMG studies of the left upper extremity. In the February 2012 Joint Motion, the parties agreed that there had not been an adequate explanation as to why Diagnostic Code 8616 (neuritis of the ulnar nerve) was the appropriate Diagnostic Code for rating the Veteran's disability. The Board remanded the claim in June 2013 for an examination to identify the specific nerve or nerves involved in the service-connected left upper extremity paresthesia, an indication as to the severity of any lost or impaired function and whether diagnosed carpal tunnel syndrome was associated with the service-connected disability. Pursuant to the June 2013 Board remand, the Veteran was afforded a VA examination in August 2013. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner diagnosed mild left C7 radiculopathy. The Veteran complained of moderate constant pain, mild numbness and mild paresthesias. Upon physical examination, he had full muscle strength. Sensation was intact to pinprick and light touch. Vibration was symmetric. In each hand, vibration appeared relatively decreased in ulnar territory in comparison to the median territory. The examiner noted a December 2004 EMG and stated that it essentially showed a mild left C7 radiculopathy, a mild left ulnar neuropathy across the elbow and a slight left carpal tunnel syndrome. The examiner noted the Veteran's mild left C7 radiculopathy and stated that this equates to mild incomplete paralysis of the middle radicular group of the left upper extremity. The examiner noted that the condition does not impact the Veteran's ability to work. The examiner noted that the Veteran's left carpal tunnel syndrome is not caused by or a result of his left upper extremity paresthesia. He further noted that "[n]euritis of the left ulnar nerve" is not the appropriate medical diagnosis of the Veteran's left upper extremity paresthesia and reiterated that the diagnosis is "mild left C7 radiculopathy." Based on the examination, the AMC increased the rating to 20 percent, effective the date of the grant of service connection, under Diagnostic Code 8510. Analysis Historically, the Veteran's service-connected left upper extremity disability has been rated under Diagnostic Code 8616 for neuritis of the ulnar nerve and Diagnostic Code 8510 for upper radicular group (fifth and sixth cervicals). Based on a review of the evidence, the Board finds Diagnostic Code 8511 is the most Code for rating the Veteran's disability. The August 2012 VA peripheral nerves examination included a diagnosis of neuritis of the ulnar nerve but did not specify whether this diagnosis pertained to the left or right upper extremity, or both. Furthermore, the examiner did not identify the specific nerve affected by the Veteran's service-connected disability. The findings provided at the August 2013 VA examination were in direct response to the Board remand. The examiner specifically identified the disability as mild, incomplete paralysis of the middle radicular group of the left upper extremity; stated that "neuritis of the left ulnar nerve" is not the appropriate diagnosis and determined left carpal tunnel syndrome is not caused by or a result of the left upper extremity paresthesias. Diagnostic Code 8511 deals specifically with the middle radicular group. As the examiner ruled out neuritis of the left ulnar nerve, Diagnostic Code 8616 is not for application. Diagnostic Code 8510 specifically pertains to the fifth and sixth cervicals, and not the seventh cervical, which is involved here. As will be discussed below, there is mild complete paralysis based on subjective and objective evidence. Overall, a rating in excess of 20 percent is not warranted under Diagnostic Code 8511. Objective evidence does not support a finding of moderate incomplete paralysis. While in January 2007, he described decreased sensation and trouble with fine motor skills in the hands, sensation was normal throughout. In fact, sensation in the left upper extremity had been consistently described by medical personnel as either "intact" or "normal." Deep tendon reflexes showed some response. In January 2007, muscle strength was 4/5, which is indicative of active movement against some resistance. Nevertheless, muscle strength consistently measured 5/5, which is indicative of normal strength. Muscle strength has not been anything less than 4/5. Subjectively, the symptoms were no more than mild. He experienced pain in the morning and at night, but did not experience it throughout the day. The August 2012 VA examiner noted no constant or intermittent pain. The Veteran also complained of numbness that would come and go. The August 2012 VA examiner noted mild numbness. In addition, the Veteran mentioned tingling, but no burning sensations. And, as noted above, while he did report decreased sensation, sensory examination showed it was normal throughout. In addition, medical personnel found the Veteran's reports of symptoms as being no more than mild. A December 2004 VA treatment report shows mild spontaneous activity consistent with mild denervation activity; and mild left-sided ulnar compression neuropathy at the elbow. And the most recent examination shows mild left C7 radiculopathy which equates to mild incomplete paralysis of the radicular group of the left upper extremity. Overall, competent evidence does not reflect assessments of any moderate symptoms or impairment. The Veteran is competent to testify as to the symptoms of his disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The Board accepts his lay statements as credible evidence of his symptoms. However, the more probative evidence consists of reports prepared by medical professionals. The August 2013 VA examiner diagnosed mild left C7 radiculopathy which he noted equates to mild incomplete paralysis of the radicular group of the left upper extremity. Separate ratings are also not warranted as the most recent VA examination shows that the Veteran's symptoms have been attributed to mild left C7 radiculopathy. The examiner ruled out neuritis of the left ulnar nerve. In addition, the examiner noted left carpel tunnel syndrome that is not caused by or the result of left upper extremity paresthesia. Staged ratings are not of application since the Veteran's left upper extremity paresthesia, involving dermatome at C7, associated with whiplash injury, cervical spine is adequately contemplated by the 20 percent rating during the entire time period in question. The preponderance of the evidence is against the claim for evaluation in excess of 20 percent for left upper extremity paresthesia, involving dermatome at C7, associated with whiplash injury, cervical spine. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Other Considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected left upper extremity disability. The Veteran's disability is manifested by pain and numbness and the specific nerve affected has been identified. The schedular criteria provide for ratings based on location of the affected area, the type and severity of the paralysis of each nerve, and motor function and sensory disturbances. 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). Even if the Board were to find that the rating criteria were not adequate, referral for extraschedular would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran's disability does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for this condition. As to employment, he has not asserted that his disability has affected his employment. In addition, the most recent examination shows that the disability does not impact his ability to work. Thus referral is not warranted. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). There is no evidence of unemployability due to the service-connected left upper extremity paresthesia, hence further consideration of TDIU is not warranted. ORDER Entitlement to an initial rating in excess of 20 percent for C7 radiculopathy involving upper radicular group, left, mild, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs