Citation Nr: 21002488 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-24 335 DATE: January 13, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for a cervical spine disability is dismissed. Entitlement to an initial rating in excess of 30 percent for radiculopathy of the left upper extremity is dismissed. Entitlement to an effective date earlier than July 15, 2014 for the grants of service connection for a cervical spine disability and left upper extremity radiculopathy is dismissed. Entitlement to a separate 40 percent rating, but no higher, for radiculopathy of the right upper extremity, secondary to service-connected cervical spine disability, since March 14, 2019, is granted. FINDINGS OF FACT 1. In February 28, 2020 correspondence, the Veteran, through his representative, withdrew the claim of an initial rating in excess of 30 percent for a cervical spine disability. 2. In February 28, 2020 correspondence, the Veteran, through his representative, withdrew the claim of an initial rating in excess of 30 percent for radiculopathy of the left upper extremity. 3. In February 28, 2020 correspondence, the Veteran, through his representative, withdrew the claim of an effective date earlier than July 15, 2014 for the grants of service connection for a cervical spine disability and radiculopathy of the left upper extremity. 4. Since March 14, 2019, the evidence indicates that the Veteran’s cervical spine disability resulted in moderate, incomplete paralysis of the right upper extremity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a rating in excess of 30 percent for a cervical spine disability by the appellant through his representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of an initial rating in excess of 30 percent for radiculopathy of the left upper extremity by the appellant through his representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of an effective date earlier than July 15, 2014 for a cervical spine disability and radiculopathy of the left upper extremity by the appellant through his representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for a separate 40 percent rating, but no higher, for radiculopathy of the right upper extremity, secondary to service-connected cervical spine disability, since March 14, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, C.F.R. § 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from September 1963 to December 1975 and from February 1980 to February 1983. Withdrawal 1. An initial rating in excess of 30 percent for a cervical spine disability 2. An initial rating in excess of 30 percent for radiculopathy of the left upper extremity 3. An effective date earlier than July 15, 2014 for grants of service connection for a cervical spine disability and left upper extremity radiculopathy The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in February 28, 2020 correspondence, the Veteran has withdrawn the issues of an initial rating in excess of 30 percent for a cervical spine disability, an initial rating in excess of 30 percent for radiculopathy of the left upper extremity and an effective date earlier than July 15, 2014 for the grants of service connection for a cervical spine disability and radiculopathy of the left upper extremity, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. SEPARATE COMPENSABLE RATING 4. A separate compensable rating for radiculopathy of the right upper extremity, secondary to service-connected cervical spine disability The Veteran contends that a separate compensable rating, as raised in the record by a March 2019 VA examination, is warranted for radiculopathy of his right upper extremity due to his service-connected cervical spine disability. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). See also 38 C.F.R. § 4.55(a) (A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions). The Veteran is currently service-connected for a cervical spine disability. In order to obtain a separate rating for right upper extremity radiculopathy, the Veteran’s symptoms must manifest at a compensable rate. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31 (2019). At the outset, the Board notes that the Veteran’s medical records indicate that his dominant hand is his right hand. As such, the Veteran’s right upper extremity will be rated under the major extremity rating. Under Diagnostic Code 8510, mild incomplete paralysis of the upper radicular group is rated at 20 percent disabling; moderate incomplete paralysis due to sciatica is rated 40 percent disabling; severe incomplete paralysis due to sciatica is rated 50 percent disabling; and complete paralysis is rated 70 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8510. 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. Turning to the evidence, in an April 2018 VA examination, the examiner reported that the Veteran did not have symptoms of radiculopathy of the right upper extremity. In a March 2019 VA examination, the examiner reported mild constant pain, moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness of the right upper extremity. The examiner noted the involvement of the C5/C6 nerve root and the C7 nerve root. The examiner found that the Veteran had moderate radiculopathy of the right upper extremity. In February 2020 correspondence, the Veteran, through his representative, asserted that his right upper extremity radiculopathy was raised in the record through the March 2019 VA examination in pursuit of determining increased severity of the Veteran’s service-connected cervical spine disability. The representative further asserted that a separate compensable rating for radiculopathy of the upper right extremity is warranted. After review of the record, the Board finds that, since March 14, 2019, a separate compensable rating of 40 percent, but no higher, for radiculopathy of the right upper extremity is appropriate. Since that time, it was ascertainable that the Veteran’s cervical spine disability resulted in moderate, incomplete paralysis of the right upper radicular group. The evidence does not indicate that the Veteran’s disability manifests in severe, incomplete paralysis. Therefore, a 60 percent rating is not warranted. In reaching this decision, the Board has considered the Veteran’s lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED