Citation Nr: 21003002 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-27 912 DATE: January 19, 2021 ORDER An initial compensable rating for left lower extremity with musculocutaneous nerve radiculopathy is denied. An increased rating in excess of 20 percent for left leg deep vein thrombosis (DVT), from February 19, 2018 to the present, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left lower extremity with musculocutaneous nerve radiculopathy is manifested by mild incomplete paralysis of the musculocutaneous nerve. 2. From February 19, 2018 to the present, the Veteran's left leg DVT disability is characterized by persistent edema, incompletely relieved by elevation of the extremity. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a compensable rating for left lower extremity with musculocutaneous nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code (DC) 8522. 2. From February 19, 2018 to the present, the criteria for an increased rating in excess of 20 percent for left leg DVT are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.104, DC 7120. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1990 to June 2013. This matter was previously before the Board of Veterans’ Appeals (Board) in April 2019 when the issues were remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2015). 1. An initial compensable rating for left lower extremity with musculocutaneous nerve radiculopathy is denied. The Veteran contends that the current severity of his left lower extremity with musculocutaneous nerve radiculopathy is worse than that which is contemplated by his current noncompensable rating, for the entire period on appeal. In particular, the Veteran has stated that he experiences flare-ups lasting a week at a time, that he experiences pain when he walks, gets out of a vehicle, sits, and stands. His initial noncompensable rating under DC 8522 is based on mild incomplete paralysis of the musculocutaneous nerve. Under DC 8522, a noncompensable evaluation is warranted for mild incomplete paralysis of the superficial peroneal nerve. A 10 percent disability evaluation is warranted for moderate incomplete paralysis of the superficial peroneal nerve. A 20 percent evaluation is assigned for severe incomplete paralysis and a 30 percent disability rating requires complete paralysis with eversion of foot weakened. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a; see also Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The terms "mild," "moderate," "moderately severe" and "severe" under DC 8522 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in February 2018. The examiner noted that a review of the Veteran’s VA e-folder was conducted in conjunction with the examination. The examiner noted a diagnosis of left lower extremity musculocutaneous nerve radiculopathy. The following symptoms of the left lower extremity were noted: moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscles strength testing revealed normal results on all testing sites. Muscle atrophy was denied. Reflex testing revealed normal results. Sensation to light touch was noted as normal. No trophic changes were noted. The Veteran’s gait was noted as normal. The examiner noted mild incomplete paralysis of the left musculocutaneous nerve. The use of assistive devices was denied. The examiner noted that an EMG study from December 2017 revealed mild axonal sensory polyneuropathy. The examiner noted that the Veteran’s condition impacts his ability to work. In particular, the examiner noted that the Veteran has missed up to one week of work time in the last 12 months, and that the Veteran is unable to sit, stand, or walk for extended periods. In the August 2018 Board hearing, the Veteran was asked if he ever experienced or was ever told by a doctor that he had involuntary foot turning, to which the Veteran stated “[n]o, I don’t know.” However, the Veteran testified that when he sits and stands for too long, he experiences a “pins and needles” feeling in his left foot, but that he is able to feel heat, cold, and pain. The Veteran stated that the pins and needles feeling sometimes causes him to trip over his left foot. Pursuant to the April 2019 Board remand, the Veteran was afforded a VA examination in October 2019. The examiner noted that the examination was conducted in-person and that a review of the Veteran’s VA e-folder was conducted in conjunction with the examination. The examiner noted a diagnosis of left lower extremity with musculocutaneous nerve radiculopathy. The Veteran was noted to be right-hand dominant. The examiner noted the Veteran’s left lower extremity peripheral nerve condition manifested in moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was performed. The examiner noted muscle strength of four out of five during left ankle plantar flexion and dorsiflexion. All other movements tested revealed normal strength, five out of five. Muscle atrophy was denied. Reflex testing revealed normal results at all testing sites. The results of the sensation testing for light touch revealed decreased sensation in the left lower leg/ankle and foot/toes. All other sites tested were normal. Trophic changes were denied. The Veteran’s gait was noted as normal. The examiner noted that the Veteran has mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity. The use of assistive devices was denied. No other pertinent findings were indicated. The examiner noted that the Veteran’s condition impacts his ability to work. In particular, the examiner noted that ambulation is limited to 15 minutes at a time. After a review of all the evidence, the preponderance of the evidence is against the claim for a compensable rating for the Veteran's left lower extremity with musculocutaneous nerve radiculopathy. Under DC 8522, a 10 percent disability evaluation is warranted for moderate incomplete paralysis of the superficial peroneal nerve. The February 2018 and October 2019 examination indicate that the Veteran has mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity. Additionally, at worst, muscle strength testing was four out of five during left ankle plantar flexion and dorsiflexion. While the Veteran indicated that the symptomatology associated with his service-connected disability is worse than that which is contemplated by his current noncompensable rating, the objective findings consistently fail to show that his disability meets the criteria for an increased evaluation; and those findings outweigh his lay assertions regarding severity. The Board has considered the Court's holding in Deluca. However, the Veteran’s symptoms are contemplated by his noncompensable rating for mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity under DC 8522. The Veteran's reported symptoms have been considered, and they support the currently assigned evaluation. The evidence as a whole does not show that the criteria for an increased rating are approximated. For these reasons, an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. In conclusion, a compensable rating is not warranted for left lower extremity with musculocutaneous nerve radiculopathy, manifested as mild incomplete paralysis of the musculocutaneous nerve of the left lower extremity, and the claim is denied. 2. An increased rating in excess of 20 percent for left leg DVT, from February 19, 2018 to the present, is denied. The Veteran contends that his left leg DVT is worse than that which is contemplated by his current 20 percent rating under DC 7120, for the period from February 19, 2018 to the present. Under DC 7120, a 20 percent evaluation is warranted for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent evaluation is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent evaluation is warranted for varicose veins with the following findings attributed to the effects of varicose veins: massive board-like edema with constant pain at rest. The Veteran was afforded a VA examination in February 2018. The examiner noted that the examination was conducted in-person and that a review of the Veteran’s VA e-folder was conducted in conjunction with the examination. The examiner noted a diagnosis of status post left leg DVT with pain. Current symptoms of pain, swelling, and numbness in the left lower extremity were noted. The examiner noted that the Veteran has varicose veins of the left lower extremity. Post-phlebitic syndrome was denied. The following symptoms were noted, of the left lower extremity: asymptomatic visible varicose veins, aching after prolonged standing and walking, and persistent edema that is incompletely relieved by elevation of extremity. No rashes were indicated. The examiner noted no amputation of an extremity due to a vascular condition. The use of assistive devices was denied. The examiner noted that the Veteran’s condition impacts his ability to work. In particular, the examiner noted that the Veteran has lost up to one week of work time in the last 12 months, and that the Veteran is unable to sit, stand, or walk for prolonged periods. In the August 2018 Board hearing, the Veteran testified that he experiences left lower extremity swelling that is not relieved by elevation. He also stated that he experiences rashes on his left foot. Pursuant to the April 2019 Board remand, the Veteran was afforded a VA examination in October 2019. The examiner noted that the examination was conducted in-person and that a review of the Veteran’s VA e-folder was conducted in conjunction with the examination. The examiner noted a diagnosis of status post left leg DVT with pain. The examiner noted that the Veteran has left lower extremity post-phlebitic syndrome. The examiner noted symptoms of aching and fatigue in the leg after prolonged walking and standing. The examiner also noted persistent edema that is incompletely relieved by elevation of the extremity. The examiner noted no amputation of an extremity due to a vascular condition. The use of assistive devices was denied. No other pertinent findings were noted. The examiner noted that the Veteran’s condition impacts his ability to work. In particular, the examiner noted that ambulation is limited to 15 minutes due to recurrent DVT. The examiner remarked that the Veteran has decreased strength, decreased range of motion, swelling, frequent flares, and pain with ambulation. The examiner also noted the presence of a rash but noted that it has no impact. The examiner noted that the Veteran reports that his left foot falls asleep, which was related to his left lower extremity with musculocutaneous nerve radiculopathy. For the period from February 19, 2018 to the present, a rating in excess of 20 percent for left leg DVT is not warranted. Throughout the period, the Veteran has reported persistent swelling associated with his left leg DVT that is not relieved by elevation. The next higher, 40 percent rating, is not warranted since the evidence does not show persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 38 C.F.R. § 4.104; DC 7120. The Board has also considered whether an increased disability rating or a separate compensable disability rating is warranted under an alternate diagnostic code, such as DC 7121 regarding post-phlebitic syndrome of any cause; however, based upon the evidence of record discussed above, no other potentially applicable diagnostic code would lead to an increased disability rating during the entire period. While the Veteran indicated that the symptomatology associated with his service-connected disability is worse than that which is contemplated by his current 20 percent rating for the period, the objective findings consistently fail to show that his disability meets the criteria for an increased evaluation; and those findings outweigh his lay assertions regarding severity. The Board has considered the Court's holding in Deluca. However, for the period from February 19, 2018 to the present, the Veteran’s symptoms are contemplated by his 20 percent rating for persistent edema that is incompletely relieved by elevation under DC 7120. The Veteran's reported symptoms have been considered, and they support the currently assigned evaluation. The evidence as a whole does not show that the criteria for an increased rating are approximated. For these reasons, an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. In conclusion, for the period from February 19, 2018 to the present, an increased rating in excess 20 percent for left leg DVT is not warranted and, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.