Citation Nr: 21002354 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-35 401 DATE: January 13, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to March 13, 2020 and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine is denied. Entitlement to a rating in excess of 70 percent for a psychiatric disability to include insomnia and posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to March 13, 2020, the Veteran’s degenerative joint disease of the lumbar spine has not been limited to flexion to 30 degrees or less or combined range of motion to 120 degrees or less. 2. As of March 13, 2020, the Veteran’s degenerative joint disease of the lumbar spine has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. The severity, frequency, and duration of the Veteran’s PTSD symptoms did not more closely approximate total occupational and social impairment. 4. The Veteran’s right upper extremity radiculopathy is manifest by no more than mild incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to March 13, 2020, and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to April 1992 and from February 1995 to November 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These matters were remanded for additional development in January 2019. The Board remanded the radiculopathy and lumbar spine issues. The Board also remanded the issue of service connection for a psychiatric disorder and an increased rating for insomnia. Service connection for insomnia was granted in a September 2013 rating decision, and was assigned a 10 percent evaluation, effective September 15, 2011. In an August 2014 rating decision, the evaluation was increased to 30 percent, effective September 15, 2011. Then, in an August 2020 rating decision, the insomnia was combined with PTSD and an evaluation of 70 percent, effective September 15, 2011 was assigned. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2019). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2019). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a rating in excess of 10 percent prior to March 13, 2020 and in excess of 40 percent thereafter for degenerative joint disease of the lumbar spine The Veteran's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, which evaluates degenerative arthritis of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Initially, the Board finds that under the General Rating Formula, no separate evaluations are assigned for associated objective neurologic abnormalities as the Veteran has denied bowel and bladder impairments. 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237, Note (1). Additionally, the Veteran has been assigned separate evaluations for right and left lower extremity radiculopathy; however, the Veteran has not appealed those evaluations. Accordingly, separate evaluations for neurological impairments are not for assignment. An August 2009 VA examination report shows that the Veteran reported stiffness and decreased motion caused by the lumbar spine disability. The Veteran reported that he did not experience fatigue, spasms, paresthesia, numbness, and weakness. No bowel, bladder, or erectile dysfunction were assessed. Pain was reported to have occurred on the left side of the low back. Pain was noted as severe, and exacerbated by physical activity, relieved by rest. During flare ups the Veteran reported that he did not experience functional impairment or limitation of the motion of the joint. The Veteran also reported that the condition did not result in incapacitation or experience overall functional impairment from the lumbar spine. Examination of the lumbar spine revealed evidence of radiating pain on movement noted as left sciatica. Muscle spasms were absent. Tenderness was noted. Spinal contour was not preserved due to tenderness. Guarding of movement was described as malingering. Spinal contour was not preserved due to guarding. Guarding did not produce an abnormal gait. Examination was noted not to reveal any weakness. Muscle tone was normal. Positive straight leg raising test was shown on the right and left legs. Ankylosis was not assessed. Range of motion examination was not able to be completed as the examiner noted that the Veteran was malingering. The inspection of the spine reveals normal head position with symmetry in appearance. There was asymmetry of spinal motion with no movement. The examiner noted that range of motion testing could not be conducted due to the Veteran’s malingering. A December 2012 VA Spine Disability Benefits Questionnaire (DBQ) shows that the Veteran was diagnosed with degenerative disc disease of the lumbar spine with left lower extremity radiculopathy. The Veteran reported constant pain in the lower pain radiating into the left buttock and down left leg. The Veteran did not report flare ups. Range of motion of the thoracolumbar spine showed forward flexion to 90 degrees with pain, extension to 30 degrees with pain, right and left lateral flexion to 30 degrees with pain, right and left lateral rotation to 30 degrees. Repetitive use testing was conducted with no additional loss of range of motion. Functional impairment was noted to be caused by pain on movement. Localized tenderness was noted. Guarding or muscle spasms were not assessed. Reflex testing was noted as 2+ for the lower extremities. Sensory examination of the lower extremities was normal. Radiculopathy of the lower left extremity was diagnosed. Bowel or bladder problems were not assessed. IVDS was diagnosed with no incapacitating episodes noted. The lumbar spine disability was noted not to impact the Veteran’s ability to work. A March 2020 VA back condition DBQ, shows that the Veteran was diagnosed with intervertebral disc syndrome and degenerative disc disease of the lumbar spine. The Veteran reported symptoms of lower back pain with intermittent numbness tingling down the legs. He reported using heat during episodes of pain. Triggers of pain were reported as bending, lifting, and sitting. Flare ups were reported that caused pain on a 10 out of 10 scale. Functional impairment of the spine after repetitive use was reported as limitation of activities due to pain. Range of motion testing showed forward flexion to 30 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees. Pain was noted on all directions of range of motion, but did not cause functional loss. Objective evidence of localized tenderness or pain on palpation of the soft tissue of the spine was not shown. Pain with weight bearing was not shown. Repetitive use testing was conducted with no additional loss of motion. The examiner noted that the examination was not conducted after repetitive use over time or during a flare up but the exam results were medically consistent with the Veteran’s statement describing functional loss during these two instances. Range of motion was estimated to be limited during flare ups and after repetitive use over time was forward flexion to 20 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. Pain was noted to cause functional loss. Guarding or muscle spasms of the thoracolumbar spine were not shown. Straight leg raising test was negative for both lower extremities. Ankylosis was not diagnosed. IVDS was assessed but not causing incapacitating episodes requiring bed rest prescribed by a physician. The examiner remarked that the Veteran’s lumbar spine disability would impact his ability to work as he would have pain with bending, heavy lifting, and would be required to limit these activities. The Veteran would also have pain with prolonged sitting and would require breaks. The examiner reported the Veteran showed objective evidence of back pain with non-weight bearing that would not reduce range of motion. Rating in excess of 10 percent prior to March 13, 2020 The Board finds that an increased evaluation is not warranted prior to March 13, 2020. The Board notes that range of motion testing could not be conducted during the August 2009 VA examination due to the Veteran’s malingering. At that time, the Veteran reported that he did not experience fatigue, spasms, paresthesia, numbness, and weakness. During flare ups the Veteran reported that he did not experience functional impairment or limitation of the motion of the joint. The Veteran also reported that the condition did not result in incapacitation or experience overall functional impairment from the lumbar spine. However, during the December 2012 VA examination the Veteran was able to participate in range of motion testing which showed forward flexion of the thoracolumbar spine to 90 degrees which in excess of 30 degrees. Additionally, combined range of motion for the thoracolumbar spine was evaluated at 210 degrees, which is in excess of 120 degrees. Repetitive movement did not cause additional limitation of motion or functional loss and there was full muscle strength. Thus, even when considering additional functional loss, it does not more nearly approximately the required limitation of flexion or limitation of combined range of motion required for the next higher rating. Furthermore, the evidence does not show incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Accordingly, a rating in excess of 10 percent for the lumbar spine disability prior to March 13, 2020, is not warranted. Rating in excess of 40 percent as of March 13, 2020 The Board finds that an increased evaluation is not warranted as of March 13, 2020 as the evidence does not show ankylosis affecting the spine. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). In this case, the March 2020 examination did not indicate that the Veteran has ankylosis affecting the spine. Additionally, while the Veteran has been diagnosed with intervertebral disc syndrome, at no time during the course of the appeal has the IVDS been assessed as causing incapacitating episodes. In sum, the preponderance of the evidence does not demonstrate that the Veteran has intervertebral disc syndrome with incapacitating episodes and there is no evidence of ankylosis to warrant an evaluation higher than 40 percent at any point during the appeal period. Even considering additional functional loss, such as repetitive use and flare-ups, the lumbar spine retained some range of motion. Accordingly, a rating in excess of 40 percent for degenerative joint disease of the lumbar spine as of March 13, 2020, is not warranted. 2. Entitlement to a rating in excess of 70 percent for insomnia and PTSD Psychiatric disorders are rated under the General Rating Formula for Mental Disorders which provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms and how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, at 442 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A review of private psychiatric treatment records from 2013 through 2015 shows that the Veteran was assessed with psychiatric symptoms of sleeping difficulties, panic attacks, hallucinations, and depression. They showed the Veteran was fully oriented and had linear and goal-directed thought process. There was intact insight and judgment. In an October 2012 private record, the Veteran reported nightmares, flashbacks, intrusive thoughts, startles easily, is hypervigilant. He stated he does not socialize. He also reported hallucinations and depression with low energy and little interest in things. He reported that he angers and agitates easily. He felt helpless and suicidal at times. The examiner found the Veteran unable to sustain social relationships and was moderately compromised in his ability to sustain work relationships. A July 2013 PTSD VA examination report shows that the examiner reported that the Veteran’s behavior during the examination was bizarre and somewhat dramatic, and was likely exaggerated. Additionally, the examiner noted that as the Veteran was currently gainfully employed while exhibiting such extreme problems with behavior and cognition during the interview could not lead to a diagnosed psychiatric condition. During the examination, the Veteran reported that he spent all of his time at his brother’s home, aside from going to work. He reported being unable to venture out for social activities. When the examiner asked the Veteran the symptoms he experienced when in public places, he did not respond with any typical indicants of hypervigilance, avoidance, or intrusions. The Veteran reported that he was currently employed doing office work. The examiner remarked that it was very difficult to obtain consistent and detailed information from the Veteran to obtain a valid indicant of his symptoms so that a Mental Disorder diagnosis could be provided. He talked about having difficulty sleeping by indicating that "I'm always up" although his psychiatrist reported that he was averaging 5-7 hours of sleep per day. When given an open-ended question about what might be disturbing his sleep, the Veteran indicated that he was confused by the question. When the examiner, asked if he was having nightmares, he responded "yes." Asked the frequency, he responded "every night." The examiner noted this response was in contrast with his psychiatrist's report of a frequency of about once a week. The Veteran indicated that his psychiatrist told him that he was having "illusions," but when asked to clarify what that meant, he did not do so. Later, he reported that he sees "people, all over, out of the corner of (his) eyes." Asked to elaborate what the people were doing or saying, he didn't elaborate. The examiner noted that Veteran presented as an exceptionally distraught, confused, and at times dysphoric individual who was fairly dramatic and often responded to questioning with "I don't know" or "I can't remember." Yet at other times, the examiner noted that, he was sharp, for example when he indicated that he apparently had not done a good enough job of hiding his emotional problems from the military because he "had to see Behavioral Health often when he was deployed." The Veteran also brought the examiner a copy of a community psychiatrist's evaluation (which had already been reviewed in his c-file) as a means to prove that he had been diagnosed with PTSD. Thus, based on all the discrepancies and inconsistencies reported by the Veteran, the examiner reported that no mental disorder could be offered by the examiner at the present time. A March 2020 PTSD DBQ shows that the Veteran was diagnosed with PTSD. The Veteran was assessed with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran was noted to be working during the last 6 years for a government contractor. The Veteran reported that he was seeing a psychiatrist and prescribed medication regarding his PTSD. He reported sleeping 3 to 4 hours of sleep per night. His mood was reported to be generally good, and that besides the people he lives with, he was socially isolated. He reported being hypervigilant, and did not want to talk about suicidal ideation. The examiner assessed symptoms of PTSD affecting the Veteran as depressed mood; anxiety, suspiciousness, chromic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. Behavior observations by the examiner were noted as the Veteran being generally cooperative, but was resistant to responding to some questions. He was mostly oriented in all three spheres (but could not correctly state the current day of the week); affect was flat and labile, while mood appeared quite depressed. There was no evidence of psychotic symptomatology. There was no tangentiality or circumstantiality noted. Speech was clear, coherent and unpressured. Insight/judgment were seen as poor. He was able to accurately repeat back three words immediately but only one of three after a brief delay. He was able to accomplish trials of serial 7’s. He could spell WORLD both backwards and forwards. He could read and comply with a simple instruction. An August 2020 VA PTSD DBQ shows that the Veteran was diagnosed with PTSD and did not have any other diagnosed mental disorders. The examiner assessed PTSD as causing occupational and social impairment with reduced reliability and productivity. The Veteran reported that he has 3 siblings and has good relationships with them. He reported he was currently single, but has two children that he was estranged from. The Veteran reported that his ex-spouse did not want him near the kids. Regarding his occupation, the Veteran reported he was employed part time at a logistics company as an administrative assistant for the last 5 years. The Veteran reported that his supervisors have voiced concerns with his performance due to him being tired and not performing well. He also reported that a co-worker told him he was verbally aggressive. The Veteran reported his overall mood was flat with inabilities to experience emotions but cried during the examination. He reported experiencing distressing dreams about the traumatic events he experienced while deployed and avoidance behaviors such as going to bars or clubs. Symptoms applying to the Veteran’s PTSD were noted as anxiety, suspiciousness, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control. The examiner also observed the Veteran to be guarded, irritable, defensive, and verbally aggressive throughout the entire assessment. The Veteran made minimal to no eye contact throughout the assessment. His tone was low, his rhythm of speech was slow. His thought content, thought process, insight, and judgment appeared impaired. The Veteran was noted to have an agitated affect. He reported his sleep was poor and appetite is decreased. The examiner noted that it was unclear whether there was suicidal or homicidal ideations as when the examiner asked the claimant the questions, he responded with "I don't want to talk about it. " After a review of the evidence of record, the Board finds that the preponderance of the evidence is against an increased rating of 100 percent, as there is not total social and occupational impairment. Although the Veteran reported increasing social isolation and strained relationships with his family and co-workers, there was not total impairment as the Veteran maintained some relationships. The Veteran continued to be working and was able to leave his home. Furthermore, despite some difficulty with his co-workers, he continued to be employed. Additionally, the private treatment records and VA examination reports noted the Veteran was fully oriented with normal thoughts and insight judgment and insight. The Veteran also did not report memory loss for names of close relatives, own occupation, or name. Other symptoms assessed were anxiety, suspiciousness, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control. However, these symptoms as noted above were not of the duration, severity, or frequency, to cause total social and occupational impairment. Accordingly, the Veteran’s symptomatology is not severe to the degree contemplated by the 100 percent criteria. 3. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy The Veteran contends that he is entitled to a rating in excess of 20 percent radiculopathy of the right upper extremity. The Veteran's radiculopathy of the right upper extremity is rated at 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 8510. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. In the instant case, the Veteran is right hand dominant; hence, his right upper extremity is considered his major upper extremity. Under 38 C.F.R. § 4.124a, criteria are listed for disabilities of the upper radicular group (DC 8510), Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group of nerves (fifth and sixth cervicales). Diagnostic Code 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side; moderate incomplete paralysis is rated 40 percent disabling on the major side; and severe incomplete paralysis is rated 50 percent disabling on the major side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side. The term “incomplete paralysis” with this and other peripheral nerve injuries 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. 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Words such as mild, moderate, and severe 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. A December 2012 VA examination report shows that the Veteran was diagnosed with cervical spine radiculopathy affecting the right upper extremity. Muscle strength testing for the for right elbow flexion and extension was 5/5, for the right wrist flexion and extension was 5/5. The right fingers were assessed with 5/5. Reflex examination for the right upper extremity was noted as 2+. Normal sensory for upper extremities was assessed. The examiner assessed the radiculopathy of the right upper extremity was constant moderate pain. The C5 and C6 nerve root radiculopathy was evaluated as moderate. An August 2014 private treatment record shows that the Veteran self-reported no weakness, tingling, or numbness. A July 2016 private treatment record showed motor examination of the right upper extremity was of normal bulk and tone. 5/5 motor was assessed. Reflex examination was 2/4 for the right bicep, triceps, and brachial radials. A March 2018 peripheral nerve condition DBQ shows that Veteran did not report any symptoms attributable to a nerve condition affecting the right upper extremity. Muscle strength testing was noted normal for the right upper extremity. Reflex and sensory examination of the right upper extremity were normal. Tropic changes were not assessed. Upper extremity nerves were all assessed as normal. A December 2018 private treatment record shows the Veteran’s review of symptoms for neurologic system was normal. He reported no weakness, numbness, or neurological symptoms. Based on the evidence of record, the disability of the right upper extremity radiculopathy is not productive of more than moderate impairment and a rating in excess of 20 percent is not warranted. There is simply no evidence of moderate incomplete paralysis within the objective medical evidence of record. Notably, there was mostly 5/5 strength, diminished reflexes, normal sensation. Although there was moderate pain, the Veteran also denied no tingling or numbness. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for right upper extremity radiculopathy. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.