Citation Nr: 21067378 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-13 653 DATE: November 4, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for C-7 radiculopathy of the right upper extremity (claimed as tremors) is denied. FINDING OF FACT At no point during the period on appeal did the competent and credible evidence of record reflect that the Veteran's C-7 radiculopathy of the right upper extremity (RUE) was manifested by severe incomplete paralysis or complete paralysis. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 40 percent for C-7 radiculopathy of the RUE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1968 to August 1970 and from June 1974 to November 1989. He is the recipient of the Purple Heart Medal and the Combat Infantryman Badge. Introduction This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The May 2015 rating decision: continued the 40 percent disability rating assigned for C-7 radiculopathy of the RUE; proposed to reduce the 20 percent disabling rating assigned for cervical myelopathy to 10 percent disabling; and denied entitlement to service connection for a lower back condition. In June 2015, the Veteran submitted a notice of disagreement (NOD) with this determination, a statement of the case was issued in February 2017, and a VA Form 9 (substantive appeal) was received in March 2017, conferring jurisdiction to the Board. The Board notes that the NOD is not valid with respect to the proposed rating reduction for cervical myelopathy as that determination was not yet final. Additionally, a February 2017 rating decision granted entitlement to service connection for the Veteran's low back condition. This issue has been granted in full and is no longer before the Board. In August 2015, the Veteran participated in a regional office hearing; the transcript is of record. The Board notes that the Veteran's representative submitted a March 2017 VA Form 9 indicating he wished to have a Board hearing. A second VA Form 9 was received in April 2017, wherein the Veteran indicated that he did not wish to have a Board hearing. In March 2021, the Veteran's representative requested a hearing. In September 2021, the Board sought clarification in a letter addressed to the Veteran. The Veteran was informed that if no response was received within 30 days, the Board would defer to his most recent selection. As no response was received, the Board will defer to the April 2017 VA Form 9, upon which the Veteran indicated he did not wish to have a hearing. While a claim for a total disability rating for individual unemployability is considered part and parcel of an increased rating claim, the Veteran has been in receipt of a 100 rating for his service-connected conditions since May 2011 and is also in receipt of special monthly compensation. I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Higher Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he or she filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his service-connected C-7 radiculopathy of the RUE is more disabling than contemplated by his current 40 percent disability rating. This condition is rated under 38 C.F.R. § 4.124a, DC 8513. DC 8513 provides the rating criteria for paralysis of the radicular nerve, and therefore neuritis and neuralgia of that nerve. Disability ratings of 20 percent, 40 percent and 70 percent are assignable for incomplete paralysis of all radicular groups of the major extremity, which is mild, moderate, or severe in degree, respectively. Disability ratings of 20 percent, 30 percent, and 60 percent are assignable for incomplete paralysis of the minor extremity, which is mild, moderate, or severe in degree, respectively. Disability ratings of 90 percent and 80 percent are assignable for complete paralysis of the radicular nerve of the major and minor extremity respectively. 38 C.F.R. § 4.124a, DC 8513. Peripheral nerve disability ratings are also available for each individual nerve and the upper, middle, and lower radicular groups; however, rating the Veteran under Diagnostic Code 8513 provides for the highest rating. The regulations describe complete paralysis for each radicular group. For the upper radicular group, complete paralysis is established where all shoulder and elbow movements are lost or severely affected, but hand and wrist movements are not affected. 38 C.F.R. § 4.124a, DC 8510. For the middle radicular group, complete paralysis is established where adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist, are lost or severely affected. 38 C.F.R. § 4.124a, DC 8511. For the lower radicular group, complete paralysis is established where all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, are paralyzed (substantial loss of use of hand). 38 C.F.R. § 4.124a, DC 8512. The term "incomplete paralysis" indicates a degree of lost or impaired function less than the type picture for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. For rating purposes, a distinction is made between major (dominant) and minor groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. 38 C.F.R. § 4.69. As noted below, the Veteran is right-hand dominant; thus, his service-connected radiculopathy of the RUE involves his major extremity. VA examinations conducted in June 2014, April 2015, and January 2017 noted the Veteran's prior diagnosis of spinal fusion and cervical myelopathy with right C-7 radiculopathy. Each examiner reviewed the available VA treatment records and documentation in the Veterans Benefits Management System. In June 2014, the Veteran noted that spinal fusion surgery had improved his chronic neck pain, but that he experienced "limited mobility" in his neck with persistent numbness in the right arm and hand. See VA Cervical Spine Conditions Examination Report, June 9, 2014. In April 2015, the Veteran reported constant pain in the posterior neck and across the shoulders. See VA Cervical Spine Conditions Examination Report, April 7, 2015. In January 2017, the Veteran continued to report constant pain as well as almost full loss of use of his right hand due to loss of feeling. See VA Cervical Spine Conditions Examination Report, January 17, 2017. At no time did the Veteran report experiencing flare-ups of the cervical spine, though he consistently reported experiencing functional loss and impairment due to limitation of motion of the neck and decreased sensation of the RUE. Despite range of motion being abnormal at all examinations, the Veteran's complaints of pain on extension, right lateral flexion, and right lateral rotation, did not contribute to his functional loss and he was able to perform repeat testing without additional loss of function or range of motion. The VA examiners each found that pain, weakness, fatigability, and incoordination did not significantly limit the Veteran's functional ability with repeated use over time. See VA Examination Reports, June 9, 2014; April 7, 2015, and January 17, 2017. In June 2014, the Veteran noted experiencing muscle spasms of the cervical spine generally as well as muscle spasms resulting in abnormal gait or abnormal spinal contour. He also demonstrated guarding of the cervical spine generally as well as guarding that resulted in abnormal gait or abnormal spinal contour. See VA Cervical Spine Conditions Examination Report, June 9, 2014. In April 2015, Localized tenderness, guarding, or muscle spasm of the cervical spine was indicated, but did not result in an abnormal gait or abnormal spinal contour. See VA Cervical Spine Conditions Examination Report, April 7, 2015. Notably, in January 2017, the Veteran complained of localized tenderness of the cervical spine but denied muscle spasms. See VA Cervical Spine Conditions Examination Report, January 17, 2017. At no time did the Veteran report, nor was he diagnosed, with muscle atrophy. Muscle strength testing is measured on a scale of zero (no muscle movement) to 5 (normal muscle strength). Muscle strength testing of the Veteran's RUE revealed the following: in June 2014, active movement against some resistance (4/5) of elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction; in April 2015, active movement against some resistance (4/5) of the right elbow, and normal strength (5/5) for elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction; and in January 2017, normal muscle strength (5/5) of the right elbow, elbow extension, wrist flexion, wrist extension, finger flexion, and finger abduction. See VA Examination Reports, June 9, 2014; April 7, 2015, and January 17, 2017. Deep tendon reflexes (DTRs) are measured on the following scale: zero (absent), 1+ (hypoactive), 2+ (normal), 3+ (hyperactive without clonus), and 4+ (hyperactive with clonus). DTRs for the RUE biceps, triceps, and brachioradialis revealed the following: in June 2014, DTRs were hypoactive, indicating a slight but definitely present response, which may or may not be normal; in April 2015, DTRs were normal; and in January 2017, were considered hypoactive. Id. Sensory examinations of the Veteran's RUE were as follows: in June 2014, testing revealed decreased sensation to light tough in the right shoulder area (C-5), inner/outer forearm (C-6/T-1), and the hand and fingers (C-6 C-8); in April 2015, testing revealed normal sensation to the right shoulder area (C-5) and right hand and fingers (C-6 C-8), with decreased inner and outer right forearm sensitivity (C-6/T-1); and in January 2017, testing revealed decreased sensation in the hand and fingers (C-6 C-8) and normal sensation in the right shoulder area (C-5) and inner/outer forearm (C-6/T-1). During each VA examination, the Veteran complained of severe RUE numbness but did not have any other signs or symptoms of radiculopathy, to include bowel or bladder problems. Each examiner noted that there was no functional impairment of the RUE such that no effective function remained, other than that which would be equally well served by an amputation with prosthesis. Computed tomography scans dated in 2013 and 2014 revealed multifocal old cerebrovascular accidents in the left temporal occipital area. Id. The June 2014 and April 2015 examination reports found the Veteran's radiculopathy of the RUE to be moderate, while the January 2017 examination report found the veteran's symptoms to be mild. In support of his claim, the Veteran submitted a private examination report in August 2014. The Veteran's civilian medical records were reviewed in conjunction with the examination, but there was no indication that his VA claims file or VA treatment records were reviewed. The Veteran was diagnosed with cervical degenerative disc disease with radiculopathy. He reported loss of sensation and coordination of the RUE. These radicular symptoms resulted in right side weakness, numbness, and loss of coordination. RUE strength varied between 5/5 and 4/5. Muscle atrophy in the right hand was noted as secondary to the Veteran's neck disability, but specific details were not provided. RUE reflexes were diminished in the inner/outer forearm and hand/fingers. RUE radiculopathy reportedly caused severe intermittent pain, moderate dull pain, severe paresthesias and/or dysesthesias, severe numbness, and loss of light touch sensation. The private clinician concluded that the Veteran's RUE radiculopathy was severe with C-5 C-6, C-7, and C-8/T-1 root involvement. See Private Examination Report, August 5, 2014. III. Analysis Initially, the Board notes the Veteran's argument regarding the qualifications of the April 2015 VA examiner, stating that this examination was "not conducted by a full doctor, but in actuality, by a physician's assistant..." See Rating Specialist Hearing Transcript, August 21, 2015, P. 5. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his representative has raised a specific challenge to the professional medical competence or qualifications of the April 2015 VA examiner. The sole complaint noted was that the examiner was not a medical doctor. In other words, the Veteran has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway, supra. All VA examiners are presumed to be competent - and their medical opinions, in turn, are assumed to be adequate - absent specific evidence to the contrary. See Nohr v. McDonald, 27 Vet. App. 124, 131-32 (2014) (quoting Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir.2013) ("It is now well settled that 'VA benefits form a [rebuttable] presumption that it has chosen a person who is qualified to provide a medical opinion in a particular case.'"). As such, all evidence of record will be considered. The VA examinations and the private examination report reflect similar findings as to lack of flare-ups, muscle strength testing, deep tendon reflex testing, and functional impairment. Conversely however, the August 2014 private examination report noted significantly different findings with respect to the presence of muscle atrophy and severe numbness of the RUE. While the Board finds the private examination report to be competent and credible evidence, it is of diminished weight. The private examiner did not review the Veteran's claims file or VA treatment records in conjunction with the examination, nor did he provide an explanation as to the diagnosis of muscle atrophy and the significant differences between the Veteran's previously reported symptoms and those noted during the August 2014 examination. While the Board recognizes the finding of severe numbness, based on the mild to moderate symptoms reported on all other testing, one finding of severity is insufficient to meet the requirements for a severe rating. At no point during the period on appeal did the Veteran's RUE radiculopathy manifest symptoms that represent severe incomplete or complete paralysis of any of the nerves involved. The Board acknowledges that the Veteran's examination reports indicate reduced grip strength; however, the reduction was characterized as 4/5, representing less than normal strength rather than more severe degrees of no movement against resistance or gravity, visible muscle movement, but no joint involvement, and no muscle movements. Thus, the impairment does not represent a severe incomplete paralysis. Therefore, entitlement to a disability rating in excess of 40 percent is denied for the entire period on appeal. The Board finds that the record does not reflect that the Veteran's RUE radiculopathy is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321 (b)(1). The discussion above reflects that the symptoms of the Veteran's RUE radiculopathy are contemplated by the applicable rating criteria. The competent medical evidence of record shows that his disabilities are primarily manifested by pain, increased sensitivity, reduction of grip strength, reduction of light touch sensation in the shoulder, inner/outer forearm, hands, and fingers, and reduced vibration sensation. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.