Citation Nr: 21069201
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 16-03 936
DATE: November 17, 2021

ORDER

Service connection for bilateral hearing loss is denied.

An initial rating in excess of 10 percent prior to March 31, 2021 and in excess of 20 percent from that date for service-connected lumbar spine degenerative disc disease (DDD) is denied.

An initial rating of 20 percent prior to March 31, 2021, for service-connected left upper extremity (LUE) thoracic outlet syndrome is granted, subject to the laws and regulations governing the payment of monetary awards.

An initial rating of 20 percent prior to March 31, 2021, for service-connected right upper extremity (RUE) thoracic outlet syndrome is granted, subject to the laws and regulations governing the payment of monetary awards.

An initial rating in excess of 30 percent from March 31, 2021 for service-connected LUE thoracic outlet syndrome is denied.

An initial rating in excess of 40 percent from March 31, 2021 for service-connected RUE thoracic outlet syndrome is denied.

FINDINGS OF FACT

1. The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a bilateral hearing loss disability for VA purposes.

2. Prior to March 31, 2021, the Veteran's lumbar spine DDD was manifested by low back pain and difficulty walking, sitting, and standing for extended periods of time.

3. From March 31, 2021, the Veteran's lumbar spine DDD has been manifested by forward flexion of 65 degrees, extension of 15 degrees, right lateral flexion of 20 degrees, left lateral flexion of 20 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 20 degrees, with pain exhibited on forward flexion and extension; the estimated range of motion following repeated use over time and during flare-ups was forward flexion of 60 degrees, extension of 10 degrees, right lateral flexion of 15 degrees, left lateral flexion of 15 degrees, right lateral rotation of 15 degrees, and left lateral rotation of 15 degrees.

4. Prior to March 31, 2021, the Veteran's LUE thoracic outlet syndrome was manifested by mild incomplete paralysis caused by a compromised C6 nerve root.

5. Prior to March 31, 2021, the Veteran's RUE thoracic outlet syndrome was manifested by mild incomplete paralysis caused by a compromised C6 nerve root.

6. From March 31, 2021, the Veteran's LUE thoracic outlet syndrome has been manifested by moderate incomplete paralysis of the upper radicular group of the minor extremity.

7. From March 31, 2021, the Veteran's RUE thoracic outlet syndrome has been manifested by moderate incomplete paralysis of the upper radicular group of the major extremity.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for a rating in excess of 10 percent prior to March 31, 2021 and in excess of 20 percent from that date for service-connected lumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, Diagnostic Code (DC) 5242.

3. The criteria for a 20 percent rating, but no higher, prior to March 31, 2021 for service-connected LUE thoracic outlet syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, DC 8510.

4. The criteria for a 20 percent rating, but no higher, prior to March 31, 2021 for service-connected RUE thoracic outlet syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, DC 8510.

5. The criteria for a rating in excess of 30 percent from March 31, 2021 for service-connected LUE thoracic outlet syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, DC 8513.

6. The criteria for a rating in excess of 40 percent from March 31, 2021 for service-connected RUE thoracic outlet syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115a, DC 8513.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1985 to January 2011.

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in February 2021.

As an initial matter, the Board notes that the Veteran's representative was the Military Order of the Purple Heart (MOPH), which was once a co-located Veterans service organization (VSO) at the Board. However, MOPH is no longer recognized as an accredited VSO. The Veteran was informed of this in August 2021 and afforded the opportunity to obtain a new representative. There is no indication that the Veteran wished to obtain new representation. Therefore, the Board will continue with appellate consideration of the case.

During the pendency of the current appeal, the Veteran was granted an increased rating of 10 percent for his lumbar spine DDD, effective February 1, 2011, and 20 percent from March 31, 2021. See May 2021 rating decision. Because this decision constituted a partial grant of benefits sought on appeal, the issues of higher evaluations for the lumbar spine DDD remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Furthermore, in the May 2021 rating decision, the Veteran was granted service connection and separate evaluations for radiculopathy of the left lower extremity (LLE) for the femoral nerve with a 10 percent evaluation; radiculopathy of the right lower extremity (RLE) for the femoral nerve with a 10 percent evaluation; radiculopathy of the LLE for the sciatic nerve with a 10 percent evaluation; radiculopathy of the RLE for the sciatic nerve with a 10 percent evaluation; radiculopathy of the LLE for the ilio-inguinal nerve with a noncompensable evaluation; radiculopathy of the RLE for the ilio-inguinal nerve with a noncompensable evaluation; radiculopathy of the LLE for the external cutaneous nerve of the thigh with a noncompensable evaluation; radiculopathy of the RLE for the external cutaneous nerve of the thigh with a noncompensable evaluation; radiculopathy of the LLE for the obturator with a noncompensable evaluation; and radiculopathy of the RLE for the obturator with a noncompensable evaluation. Each of these evaluations was granted an effective date of March 31, 2021. The RO did not indicate that the matter of the separate ratings assigned for the Veteran's bilateral lower extremity radiculopathies were inextricably intertwined with the claim for an increased rating for the lumbar spine DDD. Accordingly, the Board does not have jurisdiction over whether increased ratings for the aforementioned bilateral lower extremity radiculopathies are warranted, and if the Veteran disagrees with the ratings assigned, he is encouraged to file a notice of disagreement (NOD) with regard to the May 2021 rating decision.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

Entitlement to service connection for bilateral hearing loss.

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran seeks service connection for bilateral hearing loss based on military noise exposure. A review of the Veteran's DD-214 shows his military occupational specialty was an aircraft maintainer. In light of the duties associated with the Veteran's military occupational specialty, his exposure to hazardous noise during service is acknowledged in this case.

Nevertheless, the Board finds that, notwithstanding the Veteran's in-service exposure to hazardous noise, there is no evidence of a current hearing loss disability to sustain his claim for service connection for bilateral hearing loss. Specifically, it is not shown that the Veteran has a diagnosis for hearing loss that meets the VA definition for impaired hearing under 38 C.F.R. § 3.385.

In this regard, the Veteran's service treatment records (STRs) are silent for any complaints, treatment or diagnoses related to bilateral hearing loss. 

On July 2013 VA audiological examination, the Veteran's puretone thresholds, in decibels, were as follows:

Hertz	500	1000	2000	3000	4000

Right	10	10	10	20	15

Left	10	15	15	20	20

The Veteran's speech recognition scores were 100 percent bilaterally.

On March 2021 VA audiological examination, the Veteran's puretone thresholds were as follows:

Hertz	500	1000	2000	3000	4000

Right	15	20	15	20	25

Left	15	20	25	30	35

The Veteran's speech recognition scores were 100 percent bilaterally.

Based on the evidence, as outlined above, the Veteran is not shown to have had a hearing loss disability (as defined by VA regulation) at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007) (stating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

The Board acknowledges that in its February 2021 remand, it was stated that the June 2013 VA audiology evaluation "did show the Veteran to have hearing loss for VA purposes." See February 2021 Board remand. However, this statement appears to have been a typographical error where the Board intended to state that the June 2013 VA audiology evaluation did not show the Veteran to have hearing loss for VA purposes. This is suggested by the fact that the evidence of record does not show that the Veteran had a hearing loss disability by VA standards at the time of the June 2013 VA audiology; moreover, the Board subsequently remarked that the Veteran should be afforded a new VA audiology evaluation to determine "whether he has a bilateral hearing loss disability for VA purposes." Id. As such, the Board finds that the February 2021 statement that the June 2013 VA audiology evaluation "did show the Veteran to have hearing loss for VA purposes" was clearly in error.

The medical evidence does not show that the Veteran has demonstrated a hearing loss disability pursuant to 38 C.F.R. § 3.385. Absent evidence of a present hearing loss disability, or at the very least a showing of this required disability at some point since the filing of this claim, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that in the absence of proof of a present disability, there can be no valid claim).

Notably, although the March 2021 VA examiner provided a positive nexus opinion as to the Veteran's left ear hearing loss, the March 2021 audiogram results do not indicate that the Veteran has a current hearing loss disability for VA purposes. As such, the opinion cannot be afforded probative value.

While the Veteran is competent to report noise exposure and diminished hearing since service, difficulty hearing is not synonymous with a hearing loss disability for VA purposes, and he is not competent to diagnose hearing loss or to opine that it meets the criteria for qualification as a disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the medical matters upon which this claim turns. Id.

In light of the foregoing, the Board finds that the Veteran does not meet the VA criteria for establishing a hearing loss disability under 38 C.F.R. § 3.385. As such, the preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability. As it is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation, the Veteran's claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See 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).

1. Entitlement to an initial rating in excess of 10 percent prior to March 31, 2021 for service-connected lumbar spine DDD.

The Veteran seeks increased ratings for his service-connected lumbar spine DDD. See August 2013 NOD.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021).

A review of the record shows that the Veteran's service-connected lumbar spine DDD is rated 10 percent under DC 5242 prior to March 31, 2021.

The Board notes that there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021 if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia.

The Board notes that the spine regulations were also amended to state that DC 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective February 7, 2021). This change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under DC 5243.

With respect to arthritis, DC 5010 was clarified to rate post-traumatic arthritis according to limitation of motion, dislocation, or instability.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a.

When rating degenerative arthritis of the spine (DC 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under DC 5003 should also be considered. 38 C.F.R. § 4.71a.

Additionally, DC 5243 provides that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. [An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note 1 following Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.]

Turning to the relevant evidence of record, private treatment records document the Veteran's complaints of and treatment for lumbar spine DDD during the relevant period on appeal.

On June 2013 VA examination, the VA examiner diagnosed the Veteran with lumbar spine DDD. The Veteran reported that his primary symptom was constant low back pain that he indicated was mild and aching. The Veteran's range of motion examination showed normal results with no objective evidence of painful motion. The VA examiner noted that the Veteran was able to perform repetitive-use testing with 3 repetitions with no additional limitation in range of motion, functional loss, or functional impairment. The Veteran was not noted to have IVDS of the spine.

Based on a review of the record, the Board concludes that prior to March 31, 2021, the preponderance of the competent evidence of record weighs against the grant of a rating in excess of 10 percent for the service-connected lumbar disability. Despite the Veteran's lay reports of constant low back pain, the competent evidence did not show findings that met or approximate forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion not greater than 120 degrees; or, muscle spasm or guarding. Therefore, even considering the Veteran's reports of ongoing low back pain, his noted functional loss due to constant, mild, and aching low back pain would not result in limitation of motion more nearly approximating forward flexion greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995).

2.  Entitlement to an initial rating in excess of 20 percent from March 31, 2021 for service-connected lumbar spine DDD.

On March 2021 VA examination, the VA examiner diagnosed the Veteran with lumbar spine DDD. The Veteran reported that he experienced moderate flare-ups approximately twice a day from standing, sitting, or walking for extended periods of time. Range of motion testing demonstrated forward flexion at 65 degrees; extension at 15 degrees; right lateral flexion at 20 degrees; left lateral flexion at 20 degrees; right lateral rotation at 20 degrees; and left lateral rotation at 20 degrees. Pain was noted on forward flexion and extension. Passive range of motion was not tested, as it was medically contraindicated. The VA examiner noted that there was evidence of significant pain on active motion, but it did not result in or cause functional loss. There was no objective evidence of crepitus, localized tenderness, or pain on palpation. The VA examiner indicated that pain, fatigue, and weakness would significantly limit functional ability with repeated use over time and during flare-ups. The VA examiner further indicated that repeated use over time and flare-ups would result in range of motion of forward flexion at 60 degrees; extension at 10 degrees; right lateral flexion at 15 degrees; left lateral flexion at 15 degrees; right lateral rotation at 15 degrees; and left lateral rotation at 15 degrees. There was no guarding or muscle spasm. Muscle strength was noted to be 4/5 bilaterally for each category tested. The VA examiner noted that the Veteran did not have IVDS. The VA examiner indicated that the Veteran would not be able to perform any job duties requiring walking, standing, or sitting for any extended period of time.

The Board concludes the preponderance of the competent evidence weighs against the grant of a rating in excess of 20 percent for the service-connected lumbar spine disability. In that regard, the evidence does not demonstrate ankylosis, forward flexion to 30 degrees or less, or incapacitating episodes lasting at least 4 weeks. Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating. 38 C.F.R. § 4.7. 

The Board has considered the Veteran's reports of worsening low back pain, pain on range of motion, flare-ups, and limitations on lifting and on standing and sitting for prolonged periods, as well as the potential additional limitation of functioning resulting therefrom. Although it is clear the Veteran experienced chronic low back pain and at least some functional limitations during the appeal period, the Board finds that there is insufficient objective evidence to conclude his pain and other symptoms have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

3. Entitlement to an initial compensable rating prior to March 31, 2021 for service-connected LUE and RUE thoracic outlet syndrome.

The Veteran seeks compensable ratings for his bilateral upper extremity (BUE). See August 2013 NOD.

Prior to March 31, 2021, the Veteran's BUE thoracic outlet syndrome was rated under DC 8599-8519 for nerve impairment. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen.

Under DC 8519, a noncompensable evaluation is assigned for mild incomplete paralysis of the long thoracic nerve for each hand. A 10 percent evaluation is assigned for moderate incomplete paralysis of the long thoracic nerve for each hand. A 20 percent evaluation is assigned for severe incomplete paralysis of the long thoracic nerve in each hand. Finally, a 30 percent evaluation is assigned for complete paralysis of the long thoracic nerve of the major hand and a 20 percent evaluation is assigned for the minor hand, with an inability to raise the arm above shoulder level, and a winged scapula deformity. See 38 C.F.R. § 4.124a, DC 8519.

Notably, however, the Board finds that DC 8510 more accurately characterizes the Veteran's thoracic outlet syndrome. DC 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 and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor 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 and 60 percent on the minor side. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Private treatment records document the Veteran's complaints of and treatment for BUE thoracic outlet syndrome, which demonstrated symptoms of mild numbness, aching, and tension bilaterally.

In an October 2012 private opinion, the Veteran's private chiropractor indicated that the Veteran had a left cervico-thoracic myospasm and restrictions in cervical flexion. The private chiropractor indicated that multiple vertebral misalignments compromised the left C6 nerve root and caused numbness.

On June 2013 VA examination, the VA examiner diagnosed the Veteran with BUE thoracic outlet syndrome. The VA examiner noted that the Veteran reported tingling in his fingers, most often when riding his motorcycle, which resolved when he moved his hands. The VA examiner indicated that the Veteran had mild paresthesias and/or dysesthesias bilaterally. The Veteran's strength test, reflex examination, and sensory examination indicated normal results, and there were no trophic changes. The VA examiner did not indicate which BUE nerves, if any, were affected. The VA examiner conducted an "Adson's Test", which demonstrated markedly positive results bilaterally. The VA examiner noted that although there was no sensory deprivation, and there was no objective evidence of a pinched nerve, a diagnosis of thoracic outlet syndrome was warranted due to the positive bilateral Adson's Test. The VA examiner noted that the Veteran was unable to engage in heavy lifting, direct load bearing on the shoulder, and working with arms and hands above shoulder height, and that ergonomically correct chairs, computer stations, and workstations would be able to help reduce awkward postural positions and repetitive work activities that may have contributed to the development of initial symptoms.

In applying the above laws to the facts of this case, the Board finds that the Veteran's bilateral thoracic outlet syndrome more closely approximates the 20 percent disability rating criteria under DC 8510 during the relevant period on appeal, as it has been characterized by mild incomplete paralysis symptoms of mild numbness, aching, and tension caused by the C6 nerve being compromised. As such, a rating under the upper radicular group of the fifth and sixth cervicales most accurately describes the Veteran's service-connected thoracic outlet syndrome.

The Board has further considered whether an alternative DC is warranted. In this regard, however, there was no indication during the relevant period on appeal that any of the Veteran's other nerve or radicular groups were affected, such that DC 8511, 8512, 8513, 8514, 8515, 8516, 8517, or 8518 would be warranted.

Accordingly, Board finds that separate 20 percent ratings for LUE and RUE thoracic outlet syndrome prior to March 31, 2021 are warranted. The record is silent as to any moderate symptoms. As such, ratings in excess of 20 percent are not warranted.

4. An initial rating in excess of 30 percent from March 31, 2021 for service-connected LUE thoracic outlet syndrome, and in excess of 40 percent from March 31, 2021 for service-connected RUE thoracic outlet syndrome.

Notably, from March 31, 2021, the Veteran's thoracic outlet syndrome has been rated under DC 8513. Under DC 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups for each hand. A 40 percent evaluation is assigned for moderate incomplete paralysis of all radicular groups for the major hand and a 30 percent evaluation is assigned for the minor hand. A 70 percent evaluation is assigned for severe incomplete paralysis of all radicular groups for the major hand and a 60 percent evaluation is assigned for the minor hand. Finally, a 90 percent evaluation is assigned for complete paralysis of all radicular groups of the major hand and an 80 percent evaluation is assigned for the minor hand. See 38 C.F.R. § 4.124a, DC 8513.

On May 2021 VA examination, the VA examiner diagnosed the Veteran with BUE thoracic outlet syndrome. The Veteran reported worsening symptoms of arm and hand numbness and tingling if he does not change body positions constantly. The VA examiner indicated that the Veteran experienced moderate BUE intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran's strength test and reflex examination indicated normal results. The Veteran's sensory examination showed decreased sensation for the bilateral shoulder area, inner forearm, outer forearm, hand, and fingers. The VA examiner noted that Veteran had BUE moderate incomplete paralysis of the ulnar nerve, musculocutaneous nerve, circumflex nerve, upper radicular group, middle radicular group, and lower radicular group.

In applying the above laws to the facts of this case, the Board finds that the Veteran's overall disability picture more closely approximates the disability rating criteria for thoracic outlet syndrome of 30 percent for the minor extremity and 40 percent for the major extremity. In this regard, the May 2020 VA examiner indicated that the Veteran's BUE thoracic outlet syndrome manifested in moderate incomplete paralysis of the ulnar nerve, musculocutaneous nerve, circumflex nerve, upper radicular group, middle radicular group, and lower radicular group. The record is silent as to any severe incomplete or complete paralysis symptoms. As such, a rating in excess of 30 percent for the minor extremity and 40 percent for the major extremity is not warranted.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Griffin, 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.