Citation Nr: 20002522 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-31 439A DATE: January 10, 2020 ORDER Entitlement to an initial rating of 30 percent for postherpetic neuralgia of left upper extremity is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for postherpetic neuralgia of left upper extremity is remanded. FINDING OF FACT Throughout the appeal period, the Veteran experienced moderate incomplete paralysis of the left upper extremity. CONCLUSION OF LAW The criteria for a disability rating of 30 percent for postherpetic neuralgia of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8713, 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1970 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded this case for additional development. Increased Rating The Veteran seeks an increased rating for his postherpetic neuralgia of the left upper extremity. Prior to February 26, 2016, the Veteran received a 20 percent rating under DC 8713. As of February 26, 2016, he received a 30 percent rating under DC 8513. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See evaluations Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diagnostic Code 8713 provides ratings for neuralgia of all radicular groups. Under Diagnostic Code 8513 which is the rating for all radicular groups (for the minor side), a 20 percent rating is warranted for mild incomplete paralysis; a 30 percent rating is warranted for moderate incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis; and a maximum rating of 80 percent is warranted for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The maximum rating for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis when the involved nerve is the sciatic nerve and moderate incomplete paralysis for all other nerves. Id. Neuralgia, characterized by dull and intermittent pain, is rated as injury of the involved nerve just like neuritis. 38 C.F.R. § 4.124. The maximum rating is equal to that for moderate incomplete paralysis. Id. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Throughout the appeal period, the Veteran has experienced symptoms of left upper extremity pain, numbness, weakness, and paresthesias. He contends that at times, the pain is so severe it prevents him from lifting his arm above his shoulder. The February 2015 VA examiner noted mild upper extremity muscle weakness. February 2016 VA examination, the first adequate peripheral nerve examination of record, ultimately confirmed that the Veteran’s reported symptoms were indicative of moderate disability. See Swain v. McDonald, 27 Vet. App. 219 (2015). More specifically, at this VA examination, the Veteran noted that he experienced constant moderate pain, severe intermittent pain, moderate paresthesias and numbness. He had reduced elbow flexion, extension, wrist flexion, and pinch ability. The VA examiner noted that he did not have any atrophy or trophic changes and had normal reflexes. As a result of the pain he experiences he is unable to lift and carry objects. He also takes medication to help manage the symptoms he experiences. The examiner opined that based on his symptoms he has moderate incomplete paralysis. As a result, based on the Veteran’s symptoms, functional loss, and objective medical findings, the Board finds that at least a 30 percent rating is warranted throughout the appeal period. Entitlement to a rating in excess of 30 percent is discussed in the REMAND portion of this decision. REASONS FOR REMAND The Veteran contends that he has pain and weakened movement of his left upper extremity, to include the inability to raise his arm above shoulder level. In April 2012 correspondence, the Veteran argues that his symptoms are not wholly sensory because in addition to his sensory symptoms of numbness, pain, and decreased sensation, he experiences weakness. As a result, in its May 2018 decision, the Board remanded the Veteran’s claim for new VA examinations. More specifically, the Board directed the RO to provide findings regarding any limitation of motion of the left upper extremity, to include a discussion of functional loss, flareups, and pain with weight bearing. Additionally, the Board directed the examiner is to attempt (to the extent possible) to distinguish between and separately attribute any symptoms, to include any limitations of movement and any limited range of motion of the left upper extremity, of the service-connected neuralgia of the left upper extremity and of any separate and nonservice-connected disability. In a March 2019 peripheral neuropathy examination, the VA examiner outlined range of motion findings for the Veteran’s left upper extremities. However, the VA examiner did not opine as to effect of the Veteran’s reported flareups, during changing weather, weight-bearing. As a result, these range of motion findings are both inadequate for rating purposes and do not substantially comply with the Board’s remand directives. However, a Court remand confers on a claimant as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As a result, remand is warranted for a new VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the nature, extent and severity of his left upper extremity impairment and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Afford the Veteran a VA examination to assess the current nature and severity of any left upper extremity impairment, to include neurological, orthopedic (limitation of motion) in the Veteran’s left upper extremity, to include pain in the left shoulder. The examiner must test the Veteran’s range of motion on active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is requested to attempt (to the extent possible) to distinguish between and separately attribute any symptoms, to include any limitations of movement and any limited range of motion of the left upper extremity, of the service-connected neuralgia of the left upper extremity and of any separate and nonservice-connected disability. Please note if it is not possible to attribute the Veteran’s symptoms to each disability separately. The VA examiner is directed to consider a February 2015 VA examination report noting muscle weakness in the upper and lower extremities, and a December 2004 VA examination report of range of motion testing. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.Ijitimehin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.