Citation Nr: 1752730	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  01-03 254	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity associated with cervical spondylosis with disc disease, status post laminectomy.

2.  Entitlement to an initial rating in excess of 20 percent for cervical radiculopathy of the left upper extremity associated with cervical spondylosis with disc disease, status post laminectomy.

3.  Entitlement to special monthly compensation (SMC) at the (l) rate based on the need for regular aid and attendance of another person.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel


INTRODUCTION


The Veteran served on active duty from June 1964 to November 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2000 and December 2000 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

In September 2006, the Board, in pertinent part, remanded the issues of entitlement to SMC and entitlement to an increased rating for cervical spondylosis with disc disease, status post laminectomy, currently evaluated as 60 percent disabling.

In April 2008, the Board, in pertinent part, denied an increased rating for cervical spondylosis with disc disease, status post laminectomy; granted service connection for cervical radiculopathy; and remanded the issues of entitlement to separate ratings for neurologic deficit of each upper extremity and entitlement to SMC.

In May 2008, the RO effectuated the Board's grant of service connection for cervical radiculopathy of the left and right upper extremities and assigned separate 20 percent disability ratings, effective September 23, 2002.  

In a May 2016 decision, the Board denied entitlement to higher initial ratings for cervical radiculopathy of the right and left upper extremities.  In a March 2017 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for remand (JMR), vacated the Board's May 2016 decision, and remanded the case for further action consistent with the terms of the joint motion.  Specifically, the parties agreed that in denying entitlement to ratings higher than 20 percent, the Board did not provide an adequate statement of reasons or bases for finding that the Veteran's upper extremity radiculopathy was mild, rather than moderate, in nature, under 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2017).  

In May 2016, the Board remanded the issue of entitlement to SMC for further development.  

A June 2017 rating decision granted SMC at the (s) rate effective April 22, 1999.  However, the grant of SMC at the (s) rate does not render moot the issue of entitlement to SMC at the (l) rate.  Thus, that issue remains on appeal. 

The issue of entitlement to SMC at the (l) rate is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1.  The Veteran's right upper extremity cervical radiculopathy is manifested by mild incomplete paralysis. 

2.  The Veteran's left upper extremity cervical radiculopathy is manifested by mild incomplete paralysis. 


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 20 percent for cervical radiculopathy, right upper extremity associated with cervical spondylosis with disc disease, status post laminectomy as of September 23, 2002, are not met.  38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.321, 4.20, 4.27, 4.124a, Diagnostic Code 8513 (2017).

2.  The criteria for an initial rating in excess of 20 percent for cervical radiculopathy, left upper extremity associated with cervical spondylosis with disc disease, status post laminectomy as of September 23, 2002, are not met.  38 U.S.C. §§ 1155, 5103, 5103A (West 2012); 38 C.F.R. §§ 3.159, 3.321, 4.20, 4.27, 4.124a, Diagnostic Code 8513 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Law

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  The percentage ratings in the Schedule represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  

Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2017).  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3; see 38 C.F.R. § 3.102.  

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  



II. Facts

Initially, the Board notes that the RO assigned the current 20 percent ratings effective September 23, 2002.  Even though the claims for cervical radiculopathy stem from the April 22, 1999 claim for an increased rating for cervical spondylosis with disc disease, status post laminectomy, September 23, 2002 is the earliest possible effective date for separate ratings for cervical radiculopathy.  The reason for this is that prior to September 23, 2002, neurological abnormalities, such as radiculopathy, were contemplated by the rating assigned for the cervical spine disability under Diagnostic Code 5293.  Consequently, a separate compensable rating for neurological abnormalities would constitute pyramiding prior to September 23, 2002.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Accordingly, September 23, 2002, is the earliest possible effective date for separate compensable ratings for cervical radiculopathy.

The Veteran's bilateral cervical radiculopathy is rated under Diagnostic Code (DC) 8513, which pertains to paralysis of all radicular groups.  38 C.F.R. § 4.124a.  Under DC 8513, a 20 percent rating is assigned for mild incomplete paralysis.  A 40 percent rating is assigned for moderate incomplete paralysis involving the major upper extremity.  A 30 percent rating is assigned for moderate incomplete paralysis involving the minor upper extremity.  A 70 percent rating is assigned for severe incomplete paralysis involving the major extremity.  A 60 percent rating is assigned for severe incomplete paralysis involving the minor extremity.  A 90 percent rating is assigned for complete paralysis involving the major extremity.  An 80 percent rating is warranted when complete paralysis involves the minor extremity.  Id.

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.  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.

On VA examination in June 2001, the Veteran reported hand pain.  On examination, there was weak hand grip, bilaterally; no sensory deficit; deep tendon reflexes were positive in all four extremities; and no pathological reflexes.  The examiner diagnosed cervical radiculopathy.

On VA examination in July 2004, sensory examination revealed hypoesthesia of the upper extremities and motor examination revealed bilateral weak hand grip with pain.  In an addendum opinion, dated August 2004, the examiner diagnosed moderate carpal tunnel syndrome; radiculopathy of the right paraspinal at L3, L4, L5, and S1; and polyneuropathy.

On VA examination in March 2006, the Veteran reported poor hand grip; bilateral hand numbness; and bilateral forearm paresthesias.  Muscle examination revealed that upper extremity strength was 4/5, resulting in weak grip strength.  Sensory examination was normal.  The results of electromyography and nerve conduction studies were consistent with diffuse, symmetrical, sensory-motor polyneuropathy, affecting the myelin sheaths more than the axons of the sensory and motor fibers of the upper and lower extremities.  The examiner diagnosed peripheral neuropathy, which resulted in poor grip with numbness on both hands.

On VA examination in October 2014, the Veteran reported lightning-like pains from the neck down to his left upper extremity.  The examiner diagnosed peripheral neuropathy and cervical radiculopathy.  The examiner attributed mild intermittent pain, paresthesias and/or dysesthesias, and numbness to the Veteran's peripheral nerve conditions.  The report shows that muscle strength and reflex testing was normal.  There was decreased sensation to light touch in the left hand and fingers.  The examiner noted mild, incomplete paralysis of the right and left upper radicular and the middle radicular groups.  The examiner opined that the Veteran's cervical radiculopathy causes lightning-like pain from the neck down to his arms and numbness and tingling sensation on his digits.  The rationale was that cervical spine abnormalities impinge the cervical roots and result in cervical pain and radicular pain down his upper extremities.  The examiner also opined that the tingling and numbness of the Veteran's digits is at least as likely as not due to his carpal tunnel syndrome where the median nerve is the one affected at the level of the wrist.  The examiner concluded that both conditions result in mild impairment.

III. Analysis

The Board finds that the Veteran's bilateral cervical radiculopathy is no more than mild in nature.  Although he described "lightening-like pains" from the neck down to his left upper extremity, the examiner ultimately characterized the Veteran's upper extremity pain and numbness as mild in nature.  Moreover, apart from this subjective symptom, the only objective findings were decreased sensation to light touch of the left hand and fingers.  The Veteran's hand grip was found to be normal in this examination.  Prior examinations that quantified the Veteran's weakened hand grip found that the Veteran's grip strength was 4/5, meaning there was active movement against some resistance.  This is only one step down from normal, 5/5 strength.  The Board notes that the Veteran's weakened hand grip has also been attributed to nonservice-connected carpal tunnel syndrome or peripheral neuropathy.  In short, as the Veteran had no more than subjective symptoms characterized by the examiner as mild in nature, and as the only objective findings were decreased sensation in the left hand and fingers and a slightly weakened hand grip, with no atrophy, abnormality of the reflexes, or other objective manifestations, and no findings or report of functional impairment, the Veteran's paralysis of the upper radicular groups is no more than mild in nature, even when taking into account any symptoms or impairment due to his nonservice-connected carpal tunnel syndrome.  

Although the Veteran's incomplete paralysis is not wholly sensory, this fact alone does not establish that it is moderate in nature.  The rating schedule indicates that involvement that is only sensory may be characterized as moderate in nature, but this does not mean that the converse is necessarily true -i.e., that involvement that is more than sensory necessarily warrants a characterization of moderate incomplete paralysis.  For the reasons discussed above, the Board finds that it is manifested by no more than mild incomplete paralysis. 

In the JMR, the parties agreed that the Board should also discuss guidance from the Veterans Benefits Administration adjudication procedures manual (VBA Manual) regarding the evaluation of incomplete paralysis of the peripheral nerves, including due to radiculopathy.  The Manual advises in this regard that severe incomplete paralysis would be described when more than sensory findings are demonstrated, such as atrophy, weakness and diminished reflexes.  VBA Manual M21-1, III.iv.4.G.4.b; but see 38 C.F.R. § 19.5 (2017) (providing, in relevant part, that the Board is not bound by Department manuals, circulars, or similar administrative issues).  This guidance essentially provides that a finding of severe incomplete paralysis requires that there be more than sensory findings, as stated in the introductory language to the rating criteria applicable to diseases of the peripheral nerves.  It does not mean that the sole fact that there are more than sensory manifestations necessarily warrants a finding of severe or moderate incomplete paralysis.  To frame it in terms of a basic principle of logic, this guidance only identifies a condition that is necessary, but not per se sufficient, to establish severe incomplete paralysis.  As explained above, although there are more than sensory findings in this case, the preponderance of the evidence weighs against a finding of incomplete paralysis that is more than mild in nature.  Such a finding is in keeping with the guidance from the VBA Manual. 

Staged ratings are not warranted.  Although there may have been fluctuations in severity of the Veteran's bilateral cervical radiculopathy during the pendency of this claim, it has not met or more nearly approximated the criteria for higher ratings under DC 8513 at any point during the period under review, for the reasons discussed above.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

Because the preponderance of the evidence shows that the criteria for a rating higher than 20 percent have not been more nearly approximated for either upper extremity under DC 8513, the benefit-of-the-doubt rule does not apply.  See 38 C.F.R. § 3.102. 



ORDER

An initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity associated with cervical spondylosis with disc disease, status post laminectomy, is denied. 

An initial rating in excess of 20 percent for cervical radiculopathy of the left upper extremity associated with cervical spondylosis with disc disease, status post laminectomy, is denied. 


REMAND

The issue of entitlement to SMC at the (l) rate must be remanded for further development.  

A VA mental health examination and opinion are required to assess whether the Veteran's service-connected posttraumatic stress disorder (PTSD) renders him in need of the regular aid and attendance of another.  As noted in the Board's May 2016 remand, there are two private medical opinions finding that the Veteran's service-connected disabilities necessitate daily skilled nursing visits and an aid for daily necessities.  See Dr. Bacani (November 15, 2000); Dr. Astillero (May 29, 2001; March 26, 2003).  In remanding for a new aid and attendance examination and opinion, the Board instructed that the examiner discuss these opinions.  The Board also noted in the body of the remand that in a January 2005 opinion, a private treating physician, Dr. Astillero, recommended that the Veteran be provided with an aid and attendant to assist him, in part, because memory loss was affecting the Veteran's ability to safely and consistently take his medications.  In the January 2017 opinion, the examiner noted the opinions by Dr. Astillero, but stated that these were related to the Veteran's mental health condition, and that the Veteran would need to see another mental health provider to assess him and render an opinion regarding the need for aid and attendance.  The examiner stated that he was unable to provide an opinion regarding aid and attendance with respect to the Veteran's service-connected mental health conditions.  Thus, in order to comply with the Board's remand directives and in light of the examiner's statement, an examination must also be conducted by a VA psychiatrist or psychologist, and an opinion provided as to whether the Veteran's PTSD renders him in need of the regular aid and attendance of another.  

Accordingly, the case is REMANDED for the following action:

1.  Add any recent outstanding VA treatment records to the claims file.

2.  Arrange for a VA mental health examination to assess whether the Veteran's PTSD renders him in need of the regular aid and attendance of another person.  In this regard, the examiner should state whether the Veteran has mental incapacity which requires care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. 

In rendering the opinion, the examiner must address the opinions by Dr. Astillero dated in May 2001, March 2003, and January 2005.  

3.  Finally, after completing any other development that may be indicated, readjudicate the claim.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  All claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).


____________________________________________
P. M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs