Citation Nr: 20007455 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 14-17 300 DATE: January 30, 2020 ORDER Entitlement to an initial evaluation in excess of 40 percent for right arm radiculopathy with C 6-7 nerve compression and ulnar nerve impairment is denied. FINDING OF FACT During the period on appeal, the Veteran’s right arm radiculopathy was manifested by no more than mild incomplete paralysis of the right radicular group of the middle and lower radicular group and milt incomplete paralysis of the ulnar nerve; at no time was it manifested by complete paralysis of the right radicular group. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 40 percent for right arm radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.124a, Diagnostic Code (8516-8610). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 4, 2009 through October 30, 2009. The Veteran also had service in the Montana National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018. The Board remanded the claim for further development and for the Veteran to undergo a VA examination. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s right arm radiculopathy with C 6-7 nerve compression and ulnar nerve impairment is rated as 40 percent disabling under Diagnostic Code 8516-8610). The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. The hyphenated diagnostic code here indicates that the service-connected disability is considered the ulnar nerve impairment (DC 8516) associated with right (dominant) arm radiculopathy (DC 8610). 38 C.F.R. § 4.27. Paralysis of the upper radicular nerve group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8610 and 8710.) Evaluations of 20, 30, and 40 percent, respectively, are assigned for mild, moderate, and severe, incomplete paralysis of the minor (non-dominant) extremity. Evaluations of 20, 40, and 50 percent, respectively, are assigned for mild, moderate, and severe, incomplete paralysis of the major (dominant) extremity. A 60 percent rating is warranted for complete paralysis affecting the minor extremity, with all shoulder and elbow movements lost or severely affected, with hand and wrist movements not affected, and a 70 percent rating is warranted for the same manifestations in the major extremity. 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, Diagnostic Codes 8510 through 8540. The words “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, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran contends his right arm radiculopathy involves multiple radicular groups, as well as the ulnar nerve. He asserts that he is entitled to separate disability ratings for the upper radicular group, middle radicular group, lower radicular group, and ulnar nerve. In the alternative, he asserts he is entitled to a disability rating for all radicular groups under Diagnostic Code 8513. The Veteran underwent a VA examination in March 2013 for right arm strain. He reported his last three fingers are numb all the time, sometimes with shooting pain. He reports the pain is worse when working on a computer or hand writing notes. The Veteran’s reflex findings were all normal. The examiner noted his 3rd, 4th, and 5th fingers have loss of touch of sensation, and also have dysesthesias in those fingers. The Veteran’s right elbow flexion and extension and right wrist flexion and extension measured as active movement against some resistance. Left elbow and wrist flexion and extension were normal. The Veteran’s right finger flexion and right finger abduction measured as active movement against gravity, bit left finger was normal. There was no muscle atrophy noted. The effects on his occupational activities and daily activities include decreased mobility, decreased manual dexterity, problems lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, upper extremity pain, and interreference at work using the computer and writing. The Veteran underwent a VA examination in March 2014 and the examiner concluded the Veteran’s right shoulder disability was more likely than not caused by or related to his cervical radiculopathy as manifested by the moderate right neural foraminal narrowing at C 6-7. The examiner stated that radicular symptoms of C 6-7 are two of the most common C6 symptoms that include pain and weakness along the length of the arm. The examiner also stated the Veteran has bilateral incomplete ulnar nerve lesions of moderate severity which is related to his numbness, weakness, and tingling in his fingers. The Veteran’s right arm radiculopathy reflected moderate constant pain in the right upper extremity and none in the left. His right arm radiculopathy showed mild intermittent pain in the left upper extremity and none in the right. His right upper extremity showed moderate paresthesias and or dysesthesias and mild in the left upper extremity. The right upper extremity showed moderate numbness while the left upper extremity showed mild numbness. The Veteran’s strength was tested and showed active movement against some resistance in his right elbow at flexion and extension. with his right grip, and when pinching thumb to index finger in the right hand. The Veteran does have muscle atrophy. No trophic changes were noted, and the Veteran’s gait was noted as normal. The Veteran’s ulnar nerve showed incomplete paralysis that was rated moderate in both the right and left side. The examiner noted the Veteran did not use assistive devices for locomotion and that function was not so diminished that amputation with prosthesis would equally serve the Veteran. No functional impact was noted. The Veteran’s condition was rated at a 40 percent evaluation based on moderate neuritis. The Veteran was afforded another VA peripheral nerves examination in October 2019 as a result of the Board remand. The Veteran reported the pain starts in his right trapezius and into the dorsum of the proximal arm. He reports pain and numbness in the medial forearm and medial 3 fingers. He reports pain is present 80 percent of the time and numbness is always present. He reports trouble with writing and typing. He also reports that he only drives with his left hand because the right becomes painful and weak. He reports that his symptoms have not changed over the years. The Veteran’s October 2019 examination reflected moderate constant pain and mild numbness. His strength was shown to be normal with no muscle atrophy. His fingers and hands reflected decreased sensation. The Veteran’s ulnar nerve showed incomplete paralysis that was rated mild in both the right and left side. The examiner noted the functional impact of the Veteran’s peripheral nerve disability does impact his ability to work, there is a moderate impact on his writing, typing, lifting, and carrying. He had electromyography (EMG) testing done in March 2014 that was interpreted as incomplete right and left ulnar lesions with moderate severity, cervical radiculopathy bilaterally at right C7 and C8, and left C7. The Veteran had EMGs in September 2014 that showed the right upper extremity was normal, showing no evidence of entrapment neuropathy or cervical radiculopathy. The October 2019 VA examiner was asked to interpret the discrepancies. The October 2019 examiner reported they could not offer an explanation for the discrepancies between the March 2014 EMMG and September 2014 EMG; the VA examiner stated the September 2014 study is an outlier. The examiner stated that based on the Veteran’s past examinations and medical history and the October 2019 VA examination, this examiner felt that the middle and lower radicular groups were involved in the past as well. No trophic changes were noted, and the Veteran’s gait was noted as normal. The examiner noted the Veteran did not use assistive devices for locomotion and that function was not so diminished that amputation with prosthesis would equally serve the Veteran. Given the aforementioned medical evidence, to include the findings concerning muscle atrophy, strength, and sensation, the Board finds that it is not shown that the Veteran’s right arm radiculopathy with C 6-7 nerve compression and ulnar nerve impairment were manifested by severe incomplete paralysis. Accordingly, the criteria for a rating in excess of 40 percent (right arm) have not been met under Diagnostic Code 8610. The October 2019 examiner reported the Veteran’s symptoms have been consistent since his March 2013 and March 2014 examinations. The Veteran’s strength was noted to be normal with no atrophy and moderate constant pain and mild numbness. The Veteran’s ulnar nerve showed incomplete paralysis that was rated mild in both the right and left side. At no point during the period on appeal has the Veteran’s right arm radiculopathy with C 6-7 nerve compression and ulnar nerve impairment manifested more than mild and moderate symptoms. The Veteran’s symptoms include pain and numbness. The evidence does not reflect severe incomplete paralysis of the upper, middle, or lower radicular groups to warrant an increased evaluation. The Board also notes that the October 2019 VA examiner reported the Veteran’s condition to be mild in nature, however his moderate rating with a 40 percent evaluation has been continued based on the Veteran’s consistent reports of pain and numbness. The Board is cognizant of the Veteran’s statements regarding the symptoms of his arm disability but finds that the objective findings of the VA examiner are more probative in assigning a rating in accordance with the relevant rating criteria. The Board has considered the buddy statements from the Veteran’s colleagues and wife regarding symptoms of pain, limitation of motion, and functional impairment. These symptoms are considered in the rating currently assigned to the Veteran above. The Veteran’s contention that his right arm radiculopathy includes multiple radicular groups and the ulnar nerve was considered by the examiner in the October 2019 VA examination. The examiner stated that given the Veteran’s medical history, the middle and lower radicular groups are currently involved in his disability and were likely involved in the past as well. While multiple areas are involved in the Veteran’s disability, in considering these ratings, the Board is cognizant that evaluation of the same manifestations of a disability under various DCs, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Board explains that a Veteran is service connected for symptoms, not diagnoses, and a Veteran cannot be compensated for the same symptomology more than once, as such would constitute pyramiding in violation of 38 C.F.R. § 4.14. The Board notes the Veteran requested consideration under all radicular groups within Diagnostic Code 8513. Under Diagnostic Code 8513, moderate incomplete paralysis of all radicular groups of the dominant hand warrants a 40 percent disability rating, severe incomplete paralysis warrants a 70 percent disability rating, and complete paralysis warrants a 90 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8513. As the Veteran is receiving a 40 percent evaluation and is not entitled to an increase, a change to Diagnostic Code 8513 would not benefit the Veteran. As such, entitlement to a rating in excess of 40 percent for right arm radiculopathy with C 6-7 nerve compression and ulnar nerve impairment is not warranted. As the preponderance of the evidence is against assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. (Continued on next page) Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.