Citation Nr: 21073162 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-18 409 DATE: December 7, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy is denied. Entitlement to an evaluation of 20 percent, but no higher, for right lower extremity radiculopathy is granted. REMANDED Entitlement to an evaluation in excess of 20 percent for left upper extremity radiculopathy from September 21, 2016 is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right upper extremity radiculopathy was not manifested by moderate incomplete paralysis. 2. During the period on appeal, the Veteran's right lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve, but not moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8510. 2. The criteria for entitlement to an evaluation of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1968 to October 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated November 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. In March 2018, the Board denied entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy, entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy, and entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court issued a Joint Motion for Partial Remand (JMPR), vacating the part of the March 2018 Board decision that denied entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy, entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy, and entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. In November 2019, the Board denied entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy, entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy since September 21, 2016, entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, and granted an increased 30 percent rating for left upper extremity radiculopathy from September 25, 2006 to September 21, 2016. The Veteran did not challenge the part of the Board's decision that denied entitlement to evaluation in excess of 30 percent for left upper extremity radiculopathy from September 25, 2006 to September 21, 2016. The Veteran appealed the remaining denials to the Court. In April 2021, the Court issued a Memorandum Decision, setting aside the part of the November 2019 Board decision that denied entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy, entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy since September 21, 2016, and entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. The issues have now been returned to the Board for adjudication. INCREASED RATINGS A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 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. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In rating peripheral nerve injuries and their residuals, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. 38 C.F.R. §§ 4.123, 4.124. The Note at "Diseases of the Peripheral Nerves" 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). When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Id. at 379-80. Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. 1. Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy The Veteran contends that his right upper extremity radiculopathy is more severely disabling than represented by the 20 percent rating assigned. The period on appeal begins on September 25, 2006, the date the Veteran was awarded service connection. Under Diagnostic Code (DC) 8510 provides ratings for paralysis of the upper radicular group nerves. Mild incomplete paralysis of the major or minor extremity warrants a 20 percent rating. Moderate incomplete paralysis warrants a 40 percent rating for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis warrants a 50 percent rating for the major extremity and 40 percent for the minor extremity. Complete paralysis warrants a 70 percent rating for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8510. In this case, the Veteran is right hand dominant, thereby the rating for major extremity applies. See VA examination dated September 2016. The evidence of record does not support a rating higher than 20 percent for the Veteran's right upper extremity radiculopathy. To that end, private treatment records reflect that in October 2006, the Veteran had complaints of occasional discomfort in the trapezius area, but did not identify any radicular pain extending beyond this. On examination, he identified some mild diminished sensation in the middle fingers of his right hand. VA treatment records include an October 2007 record that noted paresthesias. Another October 2007 record included a physical examination that revealed that there was no tenderness, no significant decrease in strength to the upper extremities, and that reflexes were intact. In December 2007, the Veteran had complaints of cramping pain in his right extremity, as well as residual paresthesias and weakness in the hand. Physical examination showed normal muscle strength testing throughout. There was no evidence of muscle atrophy, and muscle tone was normal. In March 2008, physical examination showed normal sensation, normal reflexes in all extremities, and normal strength. He complained of pain along the posterior upper arm and some pain shooting into the shoulder. He stated this affected his right side only on occasion. He denied any difficulty with ambulation. Reflexes throughout were 2+. Strength was 5/5. A July 2008 record reflected that muscle strength was normal throughout the extremities. Sensation testing was decreased to vibration testing on the right upper extremity. In a November 2009 neurosurgery clinic note, on physical examination, there were no motor abnormalities, and deep tension reflexes were symmetrical and hypoactive. In November 2010, he had complaints of numbness and tingling in his right hand and fingers. At night, he changed positions frequently secondary to his hands going numb. On examination, strength in his upper right extremity was 5/5 in all fields. His reflexes were 2+/2+. In May 2011, on examination, deep tendon reflexes were intact as were pulses and sensation in the right upper extremities. In a June 2011 neurosurgery outpatient note, the Veteran reported that if he increased his activity, he would develop pain and associated paresthesias. If he kept his activity at a low level, he did better. Motor strength was good. Biceps and triceps reflexes were 2 bilaterally. At his December 2011 VA examination, the examiner noted that regarding the Veteran's deep tendon reflexes, his biceps, triceps, and brachioradialis were 2+ bilaterally. His forward flexion, and rotator cuff strength, as well as elbow flexion and extension, wrist flexion and extension, figured adduction and abduction were all 5/5. His sensation was mildly decreased on the dorsum of his right hand and radial nerve distribution. Otherwise, his sensation was intact to a light touch throughout the right upper extremity. The Veteran reported that his grip strength in his right upper extremity had decreased. An August 2012 VA treatment record reflected that the Veteran reported posterior arm and finger pain. Physical examination showed triceps reflexes were normal on the right side. During the September 2016 VA neck conditions Disability Benefits Questionnaire (DBQ) examination, muscle strength treating in the Veteran's right upper extremity was 5/5 and deep tendon reflexes were 2+. Sensation to light touch was normal. The examiner reported mild intermittent pain in the right upper extremities. He did not have any other signs or symptoms of radiculopathy. The severity of the radiculopathy was reported as mild. During the September 2016 VA peripheral nerves conditions DBQ examination, the Veteran was diagnosed with bilateral upper extremity radiculopathy. The symptoms were reported as mild intermittent pain. Muscle strength testing was 5/5, there was no muscle atrophy, and deep tendon reflexes were 2+. Sensory examination was normal and there were no trophic changes. The upper extremity nerves and radicular groups were normal. In its April 2021 decision, the Court noted that in its November 2019 decision, "The Board failed to address evidence that the appellant did indeed experience 'occasional paresthias [sic] down the inner edge of the forearm and hand,' and pain." In this case, during the period on appeal, the Veteran has only experienced sensory symptoms, to include pain, numbness, and paresthesias. Furthermore, the Board notes the duration and frequency of the paresthesias has been reported as occasional. This is consistent with mild, rather than moderate, incomplete paralysis. As moderate is the highest level available for only sensory symptoms, the Board finds that sensory symptoms would need to occur with a frequency greater than occasionally in order to warrant the highest possible rating for that symptom. In short, the medical evidence dated during the appeal period is the scenario described in Miller: wholly sensory symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. In this scenario, a rating commensurate with mild incomplete paralysis is reasonably assigned. Id. at 379-80. Based on the evidence of record as a whole, a rating higher than 20 percent for right upper extremity radiculopathy is not warranted. Medical evidence of record reflects that the Veteran's impairment was wholly sensory and consistent with no more than mild incomplete paralysis. The Veteran has not submitted medical or lay evidence showing moderate incomplete paralysis, or any of the hallmarks of a higher rating, such as trophic changes, impairment of motor function, or continuous pain. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to an evaluation of 20 percent for right lower extremity radiculopathy The Veteran contends that his right lower extremity radiculopathy is more severely disabling than represented by the 10 percent rating assigned. The Board agrees and grants a 20 percent rating for the entire appeal period. The period on appeal begins on September 25, 2006, the date the Veteran was awarded service connection. Under DC 8520 incomplete paralysis of the sciatic nerve is rated as 10 percent disabling when it is mild, 20 percent disabling when it is moderate and 40 percent when it is moderately severe. 38 C.F.R. § 4.124a. Turning to the evidence of record, private treatment records dated in October 2007 show that reflexes were intact. The Veteran reported that his arm pain was getting worse and he had cramping and spasms in his hands. He had poor grip strength. A December 2007 private treatment record noted that the Veteran complained of cramp pains in his extremities. Muscle strength was 5/5 on the right side. There was no muscle atrophy. Deep tendon reflexes were 2/4. In March 2008, the Veteran reported cramping in his first three fingers. Physical examination showed normal sensation, normal reflexes in all extremities, and normal strength. Reflexes throughout were 2+. Strength was 5/5. VA treatment records include a June 2010 neurology consultation in which the Veteran had complaints of tingling in the lateral aspect of the right leg. The impression of a nerve conduction study was an abnormal study. There was electrophysiological evidence consistent with chronic right L5-S1 radiculopathy. In a May 2011 examination for joints, the Veteran reported occasional pains down his right leg. On examination, deep tendon reflexes were intact as were pulses and sensation in the lower extremity. It was described as dull and occasionally sharp of mild to moderate severity, lasting hours daily. In a June 2011 neurosurgery outpatient note, the Veteran reported that if he increased his activity, he would develop pain and associated paresthesias. If he kept his activity at a low level, he did better. Motor strength was good. At a December 2011 VA examination, the examiner found that the Veteran's deep tendon reflexes in his knees and ankle were 2+. His hip flexion, knee flexion and extension, ankle dorsiflexion and plantar flexion, as well as his extensor hallucis longus muscle and flexor hallucis longus muscle were 5/5. His sensation was intact to a light touch throughout the lower extremity. An August 2012 VA treatment record showed ankle reflexes at 0. During the September 2016 VA peripheral nerves conditions DBQ examination, the Veteran reported mild intermittent pain in his right lower extremity. Muscle strength testing was 5/5, there was no muscle atrophy, and deep tendon reflexes were 2+. Sensory examination was normal and there were no trophic changes. The severity of the lower radicular group and the sciatic nerves was described as mild incomplete paralysis. The overall severity of right lower extremity radiculopathy was described as mild. In its April 2021 decision, the Court wrote that in its November 2019 decision, The Board noted that the appellant's right lower extremity symptoms were "at most, a mild decrease on sensory testing, and did not include any additional symptomatology that would warrant a finding of higher, moderate, level of impairment." However, the July 2010 and September 2016 VA examination report noted that on a "daily" basis the appellant suffered from "dull" and occasionally "sharp" pain that would "increase with prolonged standing." Further, the appellant alleged he experienced pain and difficulty walking during flareups, and that because of his right lower extremity pain he had difficulty sleeping. The Board agrees with the Court and finds that the evidence shows that the Veteran's right lower extremity radiculopathy was of moderate severity throughout the duration of the period on appeal. Significantly, the September 2016 VA examination noted that the Veteran experienced pain on a daily basis. Resolving reasonable doubt in the favor of the Veteran, his right lower extremity radiculopathy is found to be of moderate severity for the entirety of the appeal period. With regard to the entirety of the period on appeal, however, the evidence preponderates against finding that the right lower extremity radiculopathy was manifested by moderately severe symptoms. In this regard, lower extremity strength was no worse than "5/5," and reflexes were, at worst, "hypoactive," but not absent. Sensation was consistently normal. Right lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness were reported to be no more than mild. No trophic changes or muscle atrophy were noted, and the VA examinations of record characterized the right lower extremity radiculopathy as no worse than mild. While the record does indicate more than merely sensory findings, to include gait disturbance, this evidence does not more nearly approximate moderately severe symptomatology at any point. Overall, the disability picture preponderates against finding that the disorder met or more nearly approximated moderately severe incomplete paralysis. The Veteran has not made any statements about flare-ups of his right lower extremity radiculopathy. As discussed above, flare-ups must be quantifiable and must result in limitation of function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. 38 C.F.R. § 3.344. Based on the aforementioned evidence, the effect of a flare-up has not been more than sensory. Thus, such flare-ups do not more nearly approximate moderately severe incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520 (when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2012), the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Based on the foregoing, the evidence of record shows that a 20 percent rating for right lower extremity radiculopathy is warranted for the entire period on appeal. The evidence preponderates against finding that a rating in excess of 20 percent is warranted at any time during the period on appeal. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for left upper extremity radiculopathy from September 21, 2016 is remanded. In its April 2021 decision, the Court determined that remand was required for the Veteran's left upper extremity radiculopathy claim from September 21, 2016. The Court wrote, The Board erred by relying on an inadequate September 2016 VA medical examination...While the Board noted that the 20 percent disability rating adequately encompassed the appellant's "sensory based symptoms without objective evidence of more than mild impairment to his reflexes, motor functioning, or muscle strength," the September 2016 VA examiner notably did not examine the appellant during a flare-up. Although the appellant describes his flare-ups in terms of neck pain, his history notes symptoms of paresthias [sic], which in part also caused decreased hand and grip strength. Remand is required for the Board to ensure the appellant undergoes an adequate examination. Therefore, the Board finds that remand is required in order to afford the Veteran a VA examination for his left upper extremity radiculopathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left upper extremity radiculopathy. In-person examination is not required unless requested by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to: (a.) Provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Capture any information about the Veteran's paresthesias and any decreased hand or grip strength that occurs during flare-ups. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.