Citation Nr: 1754783 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-12 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for cervical disc bulge at C5-6 disc protrusion, cervical stenosis and degenerative disc disease of the cervical spine (cervical spine disability). 2. Entitlement to an increased rating in excess of 30 percent for carpal tunnel syndrome with C7 radiculopathy, right upper extremity (right upper extremity neurological disability). 3. Entitlement to an increased rating in excess of 40 percent for carpal tunnel syndrome with C7 radiculopathy, left upper extremity (left upper extremity neurological disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from May 1990 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). By way of background, the Veteran filed a claim in October 2007 for higher evaluations for cervical spine disability and nerve disabilities and entitlement to individual unemployability. He filed a notice of disagreement with the June 2008 RO decision. A statement of the case was issued in August 2009, but he did not file a substantive appeal. He filed an informal claim on June 29, 2010 and filed a claim shortly thereafter in August 2010 for individual unemployability and higher ratings for his neck and nerve disabilities. The Veteran was granted entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective the date of the informal claim, June 29, 2010. Therefore, the issue of TDIU is no longer before the Board. The Veteran requested a Board hearing using video-conference technology. The hearing was scheduled for June 5, 2017, and the Veteran was notified. Although some mail was returned to the Board but the hearing notice was not returned. The Veteran failed to report for the hearing. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear for the scheduled hearing, and he has since made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal, as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.702(d) (2017). The RO noted that the issues involving his nerve disabilities of his arms had been withdrawn in the March 2013 Form 9. In the Form 9, the Veteran checked the box that he only wished to appeal the following issues that were included in the statement of the case. Specifically, he noted his neck evaluation and IU. Despite this, the Veteran discussed his nerve disability in the last section in the Form 9. He said that doctors could not differentiate between radiculopathy and carpal tunnel. He reported that his arm or legs will go numb. He had sharp pain from his neck to his elbow and shoulders, as well as legs and headache. Even though the RO found that the higher evaluation for his nerve disabilities were withdrawn in this March 2013 Form 9, the Board finds that the Veteran does not appear to withdraw his nerve disabilities because he mentions them in detail in his Form 9. Furthermore, a November 2016 SSOC was issued which included the issues of a higher evaluation for his nerve disabilities. Therefore, the Board does not find that the issues of left and right upper extremity neurological disabilities have been withdrawn and will adjudicate them in this decision. FINDINGS OF FACT 1. For the appeal period, the Veteran's cervical spine disability is manifested by flare-ups, pain management treatment, pain throughout forward flexion; there is no evidence of unfavorable ankylosis of the entire cervical spine or bedrest prescribed by a physician. 2. For the appeal period, the Veteran's left upper extremity neurological disability has been shown to be manifested by severe, incomplete paralysis of a major extremity. 3. For the appeal period, the Veteran's right upper extremity neurological disability has been shown to be manifested by severe, incomplete paralysis of a minor extremity. CONCLUSIONS OF LAW 1. For the appeal period, the criteria for an evaluation of 30 percent, but not higher, for degenerative changes of the cervical spine have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5237 (2017). 2. For the appeal period, the criteria for an evaluation of 50 percent, but no higher, for left upper extremity neurological disability of the major extremity, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2017). 3. For the appeal period, the criteria for an evaluation of 40 percent, but no higher, for right upper extremity neurological disability of the minor extremity, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8511 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify VA's duty to notify was satisfied by a letter dated in September 2010. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that the May 2015 examination is adequate. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. II. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. The general rating formula for disease and injuries of the spine, specifically, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides as follows: A 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 for flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating for unfavorable ankylosis of the entire spine. Normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. Associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2017). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under DC 5293, an incapacitating episode is 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, DC 5243 (2017). Diagnostic Code 8511 provides ratings for paralysis of the middle radicular group of nerves. Under Diagnostic Code 8511, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation. Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm. Severe incomplete paralysis warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm. Complete paralysis, adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected warrants a 60 percent rating for the minor arm and 70 percent rating for the major arm. 38 C.F.R. § 4.124a, Code 8511 (2017). A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve 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, DC's 8510 through 8540 (2017). Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2017). Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124 (2017). III. Analysis cervical spine disability The Board acknowledges that in Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. Compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. However, in this case, the Veteran reported during the 2015 examination that he had pain at rest with no movement. Furthermore, the Board is granting an evaluation of 30 percent for the Veteran's cervical spine disability. A higher evaluation is only warranted on evidence of ankylosis; as this is not shown, the Board finds that the Court's holding in Correia is not applicable to this case. The Veteran has provided statements from friends and family. An August 2010 statement from his spouse noted that the Veteran had constant pain in his neck and limited range of motion. She noted shooting pain in both arms as well as numbness in both arms and hands which cause him to drop things. He cannot shower nor do household chores without constant pain in his neck. In an October 2010 statement, the Veteran's mother reported that the Veteran can hardly turn his head due to pain at times and that he has trouble sleeping because of the discomfort from his neck, upper back and arms. He also gets upset and depressed due to his progressive problems and not being able to work. The Veteran has been treated for his cervical spine pain with injections, narcotics, and TENS unit. See April 2010 and May 2010 VA treatment records. In April 2010, he reported that his neck pain was a 9 out of 10. In May 2010, he treated his pain with narcotics and reported 9 out of 10 pain levels in back and neck. In June 2010, he reported trying a TENS unit for pain management. In October 2010, he reported pain level of 8 out of 10 for neck pain. In June 2012, he reported neck pain. In May 2012, he reported shoulder and neck issues. In September 2012, he reported pain in his neck that was 4 out of 10, but he noted that his pain was 10 out of 10 in the last 3 days. In June 2016, the Veteran reported neck pain. The Veteran has received three VA examinations to determine the severity of his neck disability. In the December 2010 VA neck examination, the examiner noted that the Veteran has had injections to his neck 3 times for pain management. He reported pain, stiffness, weakness and fatigability to cervical spine. The pain begins at base of neck and radiates down shoulders and both arms. Forward flexion was to 22 degrees and extension to 10 degrees. Left and right lateral flexion were to 10 degrees. Left lateral rotation was to 46 degrees and right lateral rotation was to 52 degrees. After repetitive movement, forward flexion was to 20 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, right lateral flexion to 14 degrees, left lateral rotation to 43 degrees and right lateral rotation to 48 degrees. He reported flare-ups every day. There was objective evidence of painful motion, weakness and tenderness. The Veteran denied incapacitating episodes in the past 12 months. The examiner did not document when the pain began during range of motion testing. In a February 2011 examination, flexion was to 25 degrees without objective evidence of pain. Extension was to 20 degrees without objective evidence of pain. Left lateral and right lateral flexion were to 20 degrees without objective evidence of pain. Left lateral rotation and right lateral rotation were to 40 degrees without objective evidence of pain. There was no limitation of motion following repetitions. The Veteran reported having flare-ups when his pain increases from 7 or 8 out of 10 to 10 out of 10. The examiner found no objective evidence of painful motion, spasm or weakness during the examination. The Veteran denied incapacitating episodes in the past 12-month period. The examiner diagnosed the Veteran with degenerative changes of the cervical spine disease. In May 2015, the Veteran received a VA examination for his cervical spine. The Veteran reported pain at rest. The examiner noted that pain was experienced with forward flexion, left lateral flexion and left lateral rotation. Forward flexion was to 35 degrees. Extension was to 25 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 15 degrees. Right lateral rotation was to 25 degrees, and left lateral rotation was to 15 degrees. Following repetitions, forward flexion was to 20 degrees, extension was to 20 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 10 degrees. Right lateral rotation was to 25 degrees and left lateral rotation was to 15 degrees. The examiner was unable to state without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examination was being conducted during a flare-up. The Veteran had localized tenderness but it did not result in abnormal gait or abnormal spinal contour. He had no ankylosis of the spine. The Veteran had intervertebral disc syndrome (IVDS) of the cervical spine but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran used a cane to ambulate. The examiner did not find that there was no effective function of the cervical spine so that he would be equally served by an amputation with prosthesis. Having reviewed the evidence of record, the Board has determined that an evaluation of 30 degrees is warranted for the Veteran's cervical spine disability. The Veteran received three VA examinations. The December 2010 examination report noted flexion to 25 degrees but did not include at what degree pain began. Therefore, the Board does not find that this examination to be adequate. The February 2011 examiner noted flexion to be to 25 degrees and that there was no objective evidence of painful motion. Despite this, VA treatment records show pain management treatment for his neck from April 2010 to September 2012. The most recent May 2015 examination report noted that the Veteran had pain at rest and therefore, pain throughout range of motion testing. 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. See 38 C.F.R. § 4.7. Here, the disability picture shows that the Veteran's cervical spine is manifested by flare-ups, documented pain management treatment and pain throughout range of motion testing. A 30 percent evaluation is warranted for the cervical spine when forward flexion of the cervical spine is 15 degree or less or favorable ankylosis of the cervical spine. For these reasons, the Board finds that a 30 percent evaluation is warranted as the Veteran experienced pain throughout the range of motion testing in the May 2015 examination and the disability picture includes flare-ups and documentation of pain management treatment. A 40 percent evaluation is not warranted unless there is unfavorable ankylosis of the cervical spine. The Board acknowledges that the Veteran has decreased range of motion and pain on VA examination; however, motion is possible, and the record does not demonstrate fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. As such, the Board concludes that the criteria for an evaluation in excess of 30 percent are not met. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome. However, there is no evidence showing that bed rest was prescribed by a physician during the period in question. Accordingly, a higher evaluation pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board finds that a 30 percent evaluation is warranted for the cervical spine from June 29, 2010. IV. Analysis upper extremity neurological disability The Veteran is service-connected for a right and left upper extremity neurological disability. Originally, the Veteran was assigned an evaluation under Diagnostic Code 8515 for incomplete paralysis of the median nerve, but during the appeal period before the Board, the RO has assigned evaluations under Diagnostic Code 8511 for incomplete paralysis of the middle radicular group. The Veteran has been assigned a 40 percent evaluation for right upper extremity neurological disability since June 29, 2010, the date of his informal claim. The Veteran has been assigned a 30 percent evaluation for left upper extremities neurological disability since June 29, 2010. Diagnostic Code 8511 provides ratings for paralysis of the middle radicular group of nerves. Under Diagnostic Code 8511, for both the major and minor arms, mild incomplete paralysis warrants a 20 percent evaluation. Moderate incomplete paralysis warrants a 30 percent rating for the minor arm and a 40 percent rating for the major arm. Severe incomplete paralysis warrants a 40 percent rating for the minor arm and a 50 percent rating for the major arm. Complete paralysis, adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected warrants a 60 percent rating for the minor arm and 70 percent rating for the major arm. 38 C.F.R. § 4.124a, Code 8511 (2017). In a December 2010 VA examination, the examiner noted that strength was 3/5 in all muscle groups of the upper and lower extremities. Straight leg raise positive bilaterally. Sensation to monofilament and vibration was decreased in the upper and lower extremities. The Veteran reported numbness and tingling in hand and feet. The nerves impacted were the large and small nerves of the hands and feet. The examiner noted exacerbations of paresthesias daily lasting up to all day. He had decreased monofilament and vibration in both upper extremities. In a February 2011 peripheral nerve examination, the Veteran reported daily neck pain that is sharp and is 7 to 8 out of 10 on the pain scale. He was treated with morphine and Percocet with good response. He was also treated with prescribed NSAIDS, Baclofen, and Cymbalta for the symptoms but they do not work as well as the narcotic pain medications. The Veteran is left-handed. Strength was 5/5 in all muscle groups of the upper and lower extremities. Sensation to monofilament and vibration was intact in upper extremities. Sensation to vibration was intact in the lower extremities. Sensation to monofilament mildly diminished in the lower extremities. A March 2011 EMG noted moderate to severe median neuropathy/carpal tunnel syndrome bilateral chronic C7 radiculopathy and bilateral of upper extremities. Another EMG opinion also provided in March 2011 noted bilateral moderate to severe carpal tunnel syndrome which was likely the cause of most the hand numbness/tingling, but the neurologist could not rule out partial involvement of C7 radiculopathy without speculation. The neurologist also noted the diagnosis of chronic bilateral C7 radiculopathies that were likely contributing to neck pain and radicular pain and headaches. The March 2015 neurological examination noted decreased sensation in the shoulder, inner and outer forearm, hand and fingers. The examiner found that the Veteran had constant severe pain due to radiculopathy in the right and left upper extremities. He had severe intermittent pain of the right and left upper extremities. He had moderate paresthesias and dysesthesias of the right and left upper extremities. He had severe numbness of the right and left upper extremities. The nerve involved was the middle radicular group. The examiner opined that radiculopathy was moderate in severity on both the right and left. He had no bowl or bladder problems. With respect to the left upper extremity neurological disability, the Board finds that a 50 evaluation is warranted for severe incomplete paralysis of a major joint as the Veteran is left-handed. With respect to the right upper extremity neurological disability, the Board finds that a 40 evaluation is warranted for severe incomplete paralysis of a minor joint. The March 2011 EMG noted moderate to severe median neuropathy. The March 2015 examiner opined that the Veteran had moderate radiculopathy on both right and left. Despite this, the March 2015 examiner noted severe constant pain, severe intermittent pain, and severe numbness. For these reasons, the Board finds that the Veteran's disability picture reflects that the Veteran has severe incomplete paralysis of the middle radicular group. These evaluations consider the level of pain noted on examination and the March 2011 EMG findings. As the Veteran is left-handed, a 50 percent is warranted for the left upper extremity neurological disability and a 40 percent evaluation is warranted for the right upper extremity neurological disability throughout the appeal period under Diagnostic Code 8511. The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms. In this case, the Board finds no other provision upon which a higher rating could be assigned for the Veteran's neurological disabilities of the bilateral upper extremities. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In sum, a 50 percent evaluation is warranted for the left upper extremity neurological disability and a 40 percent is warranted for the right upper extremity neurological disability beginning June 29, 2010. These evaluations are the highest evaluations assignable for incomplete paralysis of the middle radicular group. ORDER For the appeal period, entitlement to a 30 percent, but no higher, for cervical spine disability is granted, subject to the regulations governing the award of monetary benefits. For the appeal period, entitlement to a 50 percent evaluation for the left upper extremity disability evaluation is granted, subject to the regulations governing the award of monetary benefits. For the appeal period, entitlement to a 40 percent evaluation for the right upper extremity disability evaluation is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs