Citation Nr: 18142560 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 13-00 969 DATE: October 17, 2018 ORDER Entitlement to an initial evaluation in excess of 20 percent for left upper extremity radiculopathy is denied. Entitlement to an initial evaluation in excess of 20 percent for right upper extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. At no point during the period on appeal did the Veteran had more than mild incomplete paralysis of the left upper radicular group. 2. At no point during the period on appeal did the Veteran had more than mild incomplete paralysis of the right upper radicular group. 3. The Veteran’s service-connected disabilities are not shown to preclude his participation in regular substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8610. 2. The criteria for entitlement to an initial evaluation in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8610. 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1981. Pursuant to an August 2017 remand, the RO sent the Veteran a letter was sent to the Veteran in August 2017 asking that he to identify and provide authorization for VA to obtain additional treatment records on his behalf and submit a completed VA Form 21-8940, Application for TDIU. In addition, an attempt was made to schedule the Veteran for a VA examination; however, the Veteran failed to respond to these requests. The “the duty to assist is not always a one-way street,” and a claimant has an obligation to provide VA information necessary to substantiate the claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran’s representative acknowledged that the Veteran did not respond to either request, but made no argument and presented no explanation as to why the Veteran did not reply. The Board’s prior remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection was granted and separate 20 percent ratings assigned for the upper extremities, effective November 9, 2010. Entitlement to initial evaluations in excess of 20 percent for left and right upper extremity radiculopathies are not warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's upper extremity radiculopathies are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8610 paralysis of the upper radicular group. Under Diagnostic Code 8610, complete paralysis of the nerve (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected) is rated as 70 percent for the major arm; 60 percent disabling for the minor arm. Disability ratings of 20 percent, 40 percent, and 50 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree, for the major arm. For the minor arm, ratings of 20 percent, 30 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree. 38 C.F.R. § 4.124a, Diagnostic Code 8610. 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 involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding Diagnostic Code 8610. 38C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. In October 2010, muscle strength was 4/5 in the upper extremities. In December 2010 upper extremities were normal. In April 2011 the Veteran reported pain in the upper extremities. He reported that this left neck and shoulder felt numb and hurt when moved. The Veteran was noted to have weakness to the left upper extremity. Yergason and drop-arm tests were positive to the left upper extremity. The Veteran was diagnosed, in part, with cervical radiculopathy. In August 2011 the Veteran’s extremities were noted to have normal bulk and tone, muscle strength of 5/5. Sensory was grossly intact to light touch and position. In October 2011 the Veteran was noted to have 5/5 strength and no focal neurological deficits. In March 2012 the Veteran was noted to have 5/5 strength in the upper extremities. The right hand had medial numbness to the middle digit. There were no other sensory changes. In April 2012 the Veteran was noted to have no sensory abnormalities in the left upper extremity; however, the Veteran reported some decreased sensation over the left posterior shoulder and left neck which corresponded to his area of pain. The right upper extremity had numbness throughout the right fifth digit and palmar and medial aspect of the right hand, otherwise sensation was intact. He had 5/5 strength in finger grip bilaterally, 5/5 strength at the biceps and triceps bilaterally, 5/5 strength at the right deltoid, muscle strength and left deltoid were unable to be assessed secondary to pain. Reflexes were minimal but symmetric in the biceps, triceps, and brachial radialis. In February 2013 the Veteran was noted to have numbness and tingling in his fingers. The Veteran had reflexes that were +2 throughout, decreased to the left upper extremity, elbow, and wrist. In August 2013 the Veteran was noted to have motor strength of 5/5 in all extremities with subtle reduced left grip strength. The Veteran had no sensory deficits to light touch and pain. In March 2014 the Veteran had 5/5 power in the extremities. The Veteran was afforded a VA examination in March 2016. The Veteran was noted to be right-hand dominant. Upper extremity muscle strength testing was normal throughout without muscle atrophy. Reflex examination of the upper extremities was normal throughout. Sensory examination of the upper extremities was normal. The Veteran was noted to have mild radiculopathy in the upper extremities and the nerve involved was identified as the upper radicular group. In August 2017 the Veteran was noted to have strong bilateral upper extremity movement and no muscle deficits. The Veteran was treated in August 2017 for cervical radicular pain. Entitlement to an evaluation in excess of 20 percent for left upper and right upper extremity radiculopathy is not warranted. At no point during the period on appeal has the Veteran’s left or right upper extremity radiculopathy manifested more than mild symptoms. The Veteran’s symptoms include pain and numbness; however, at no point has either upper extremity showed a combination of sensory changes and reflex or motor changes. With the exception of one notation of muscle strength of 4/5 and subtle reduction of left grip strength, treatment records have noted that the Veteran had upper extremity strengths of 5/5. Upon examination in March 2016 the Veteran was noted to have normal upper extremity muscle strengths, reflexes, and sensation. The examiner indicated that the Veteran had mild radiculopathy in the bilateral upper extremities. In August 2017 the Veteran was noted to have strong bilateral upper extremity movement and no muscle deficits. As the preponderance of the evidence is against a finding that the Veteran’s left or right upper extremity radiculopathy manifests more than mild paralysis, the claims for higher evaluations for left and right upper extremity radiculopathy are denied. To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(c). In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). During the entire period on appeal the Veteran has been in receipt of service-connected benefits for degenerative arthritis of the cervical spine, evaluated as 30 percent disabling for the period other than when he was awarded a temporary total; left upper extremity radiculopathy, evaluated as 20 percent disabling; and right upper extremity radiculopathy, evaluated as 20 percent disabling PTSD. As the disabilities all result from a common etiology, the represent a single disability for the purposes of TDIU. 38 C.F.R. § 4.16 (a)(2). The combined evaluation, during the period other than that for which the Veteran is in receipt of a temporary total is 60 percent, thus the Veteran meets the schedular criteria for TDIU. The Veteran did not respond to a request for additional information so the record does not include a completed VA Form 21-8940, TDIU application form which would have provided detailed education and work history. The Veteran is unemployed and records indicate that he was last employed as a housekeeper in 2010. However, other records report sporadic employment. After examination in March 2016 the Veteran’s neck disability was noted to impact his ability to work in that it caused difficulty in rotating the neck. After examination of the shoulder and arm disability, it was noted that they did not cause any impact on the Veteran’s ability to perform occupational tasks. Although there is an indication that the Veteran’s neck disability may impact his ability to work, in light of a lack of evidence regarding the Veteran’s employment and argument regarding employability, the preponderance of the evidence is against a finding that the service connected disabilities render the Veteran unemployable. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel