Citation Nr: 18144127 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 14-39 585 DATE: October 24, 2018 ORDER Entitlement to an increased rating for degenerative disc disease (DDD) at C4-5 and C5-6, status post discectomy with foraminotomy, currently rated as 30 percent disabling, is denied. Entitlement to an increased rating for cervical radiculopathy, left upper extremity, currently rated as 30 percent disabling, is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s DDD at C4-5 and C5-6, status post discectomy with foraminotomy, was not manifested by unfavorable ankylosis of the entire cervical spine or incapacitating episodes having a total duration of at least four weeks during the past 12 months at any time during the appeal period. 2. The Veteran’s cervical radiculopathy, left upper extremity, was manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for DDD at C4-5 and C5-6, status post discectomy with foraminotomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1 - 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003-5242 (2017). 2. The criteria for a rating in excess of 30 percent for cervical radiculopathy, left upper extremity, have not been met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.124a, DC 8512 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Coast Guard from January 1986 to July 1994. He died in May 2017, and the appellant is his widow. She has apparently been substituted to pursue this appeal. Prior to his death, the Veteran correctly noted that the September 2014 Statement of the Case (SOC) did not reflect consideration of treatment records from Pain Management Specialists that he had submitted. He requested that the RO consider this evidence. See October 2014 VA Form 9. Subsequently, the Veteran’s representative requested that the RO “look into these medical records before certifying the case to the Board of Appeals.” See April 2016 VA Form 646. However, in May 2018, the appellant’s representative waived AOJ consideration of these records. Therefore, remand for an SSOC is not necessary. Increased Rating Disability evaluations are determined by application of a schedule of ratings based on the average impairment of earning capacity resulting from a service-connected disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. 1. Entitlement to an increased rating for DDD at C4-5 and C5-6, status post discectomy with foraminotomy, currently rated as 30 percent disabling Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. Pursuant to this formula, a 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, DC 5237. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The rating schedule also includes criteria for evaluating intervertebral disc syndrome (IVDS). Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. Under the IVDS formula, a 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For these purposes, an incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). The Board finds that a rating in excess of 30 percent is not warranted. First, there is no evidence of unfavorable ankylosis of the entire cervical spine at any point during the appeal period. The appellant testified that the Veteran “could not move his neck.” See id. at 9. However, the medical evidence indicates that the Veteran retained some motion of his neck. For example, there was 10 degrees of flexion upon VA examination in October 2010, and private treatment records consistently note limited range of motion of the cervical spine. Second, there is no evidence of physician prescribed bed rest totaling a duration of at least four weeks during a 12-month period. The 2010 VA examiner found no signs of IVDS, and the Veteran specifically denied any periods of incapacitation during the past 12 months. Rather, the VA examiner noted that the Veteran’s neck pain was alleviated by prescription medication. The August 2014 VA examiner found IVDS of the spine and determined that the Veteran had incapacitating episodes for at least two weeks, but less than four weeks, during the past 12 months. The Board acknowledges the appellant’s contention that the Veteran was incapacitated “[m]any, many times” because of his back and “would just lay down for a few days.” See Hearing Transcript at 6. However, she did not provide similar testimony with respect to the Veteran’s neck. Therefore, the preponderance of the evidence is against a rating greater than 30 percent under DC 5243. The Board has considered whether the Veteran’s neck disability resulted in functional loss. However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). As the Veteran has already been assigned the maximum schedular rating for limitation of motion of the cervical spine, a higher rating is not warranted based on additional limitation of motion due to such factors as pain, pain on motion, weakened movement, incoordination, or excessive fatigability because the maximum limitation of motion, prior to ankylosis (ankylosis means no motion), is established. The Board has carefully considered the lay assertions regarding the severity of his neck disability. The Veteran and his wife are competent to state how he experienced symptoms, such as pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, they are not competent to identify the specific level of disability according to the relevant diagnostic codes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, their opinions are outweighed by the medical evidence of record, which shows that there is no entitlement to a higher schedular rating for the Veteran’s cervical spine disability. 2. Entitlement to an increased rating for cervical radiculopathy, left upper extremity, currently rated as 30 percent disabling The Veteran’s left upper extremity radiculopathy is rated under DC 8512, for impairment of the lower radicular group. These nerves, which include the radial, median, and ulnar nerves, control the movements of the hand, wrist, and fingers. A 40 percent rating requires moderate incomplete paralysis of the major lower radicular group or severe incomplete paralysis of the minor lower radicular group. A 50 percent rating requires severe incomplete paralysis of the major lower radicular group. A 60 percent rating requires complete paralysis of all intrinsic muscles of the minor hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand). A 70 percent rating requires complete paralysis of all intrinsic muscles of the major hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a, DC 8512. The Veteran was right hand dominant. See Hearing Transcript at 17. The term “incomplete paralysis,” with these 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. VA treatment records show that in April 2010 the Veteran complained of left upper extremity weakness. Physical examination revealed mild relative atrophy of the left deltoid, biceps, triceps, and forearm muscles. There was also decreased sensation in the fourth and fifth digits. An EMG was consistent with significant chronic C7 radiculopathy with no evidence of current activity, but visible axonal (motor unit) dropout in that root. An ENC of the left ulnar nerve showed no evidence of entrapment at the wrist or across the elbow. In October 2010, the Veteran underwent a VA examination. He complained of severe pain, weakness, and numbness in the left hand. The pain was relieved with prescription medication. He was boat mechanic and was often unable to work more than two hours due to hand symptomatology. He also reported flare-ups that he described as loss of arm and hand strength. Physical examination revealed decreased sensation in the left distal forearm, left ulnar side of the ring finger, and left little finger. There was motor weakness of left finger flexion (4/5). Reflex testing was normal. The examiner noted that the Veteran’s left upper extremity radiculopathy caused weakness, decreased light touch and grasp, and numb fingers. There was no atrophy. The examiner stated that there was functional impairment in that the Veteran’s usual occupation involved repetitive use of the left hand. Private treatment records show that the Veteran received pain management from March 2013 to November 2016, which variously consisted of prescription pain medication, steroid injections, and conservative measures. He repeatedly complained of pain and weakness in the left arm/hand, as well as numbness in his fingers. Physical examinations showed decreased grip strength and decreased sensation to pinprick, vibration, and light touch. Deep tendon reflexes of the upper extremities were decreased, but equal. During the March 2018 hearing, the appellant stated that the Veteran had to lift his coffee cup with both hands and often dropped things. She testified that “there were times that his hand would freeze and he could not do anything for hours.” See Hearing Transcript at 10, 17. She stated that he wore a brace to help alleviate left hand pain. Based on review of the evidence of record, the Board finds that an increased rating for cervical radiculopathy of the left upper extremity is not warranted for any portion of the rating period on appeal. The evidence of record reflects symptoms of moderate severity, to include chronic pain, numbness, and weakness, as well as decreased sensation and muscle strength, decreased grip strength, and reduced deep tendon reflexes. VA and private treatment records show that the Veteran did exhibit some strength and was not without sensation, and objective examination findings remained relatively stable for several years. Although muscle atrophy was found on examination in April 2010, it was noted to be mild. There are no other findings of atrophy in the medical records. In fact, the October 2010 VA examiner specifically found no atrophy of the limbs. The Board has also considered whether a higher disability rating is warranted under DC 8516, but finds no evidence that the Veteran suffered from complete paralysis of the ulnar nerve during this appellate period. As noted above, the Veteran and the appellant are not competent to identify a specific level of disability related to his left upper extremity radiculopathy. Such competent evidence concerning the nature and extent of this disability has been provided by VA and private medical professionals who objectively examined him. The Board finds these clinical records to be competent and probative evidence of record, and therefore entitled to greater weight than subjective complaints related to the Veteran’s left upper extremity radiculopathy. Finally, the Board finds that the lay statements and testimony raise the issue of extraschedular consideration with respect to his cervical spine and left upper extremity disabilities. The Veteran complained of stiffness, pain, numbness, weakness, atrophy, and decreased grip strength. The relevant rating criteria contemplate limited range of motion, as well as sensory and motor impairment. The ulnar nerve is a sensory and motor nerve that conducts impulses from the brachial plexus to the skin on the front and back of the medial part of the hand, some flexor muscles on the front of the forearm, many short muscles of the hand, the elbow joint, and many hand joints. See Dorland’s Illustrated Medical Dictionary 1243 (30th ed. 2003). When the ulnar nerve is not fully functioning (disabled), it may result in a reduction in the motor (muscular) function and, thereby, cause feelings of weakness or decreased grip strength. Paralysis is defined as a loss or impairment of motor function. Id. at 1364. Therefore, the Board finds that the Veteran’s cervical spine and left upper extremity disabilities are not so exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extraschedular basis. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a right leg disability is remanded. The appellant contends that the Veteran injured his back during service and that his right leg disability was related to his back disability. Specifically, she testified that he injured his back in a fall on a boat and later developed right sided sciatica pain. The Veteran alleged that he had back and right leg disabilities secondary to his service-connected cervical spine disability. The Board notes that although the September 2014 VA examiner provided a negative nexus opinion, that opinion addresses secondary service connection only and is not adequate for rating purposes. Thus, remand for an addendum opinion is warranted. 3. Entitlement to TDIU With respect to the issue of entitlement to TDIU, although the issue was previously denied in May 2009, the appellant testified that the Veteran “could not work.” See Hearing Transcript at 19-20. Accordingly, this issue has been added for appellate consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. The appellant should be provided with notice in compliance with the VCAA that informs her of what evidence she must show to support a claim for a TDIU. The appellant should also be provided a TDIU application form for completion (VA Form 21-8940). 2. Obtain the Veteran’s VA vocational rehabilitation records. (He filed for vocational rehabilitation benefits in 1996). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back and right leg disabilities are at least as likely as not (50 percent probability or more) related to his active service. The examiner should consider the appellant’s March 2018 testimony and the Veteran’s August 2010 lay statement of having back problems since his 20’s. The examiner should also enter an opinion as to whether the service connected disorders aggravated the low back or right leg disorders. A complete rationale should be provided. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel