Citation Nr: A21020498 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 210602-163580 DATE: December 23, 2021 ORDER An effective date earlier than July 18, 2014 for the award of service connection for left upper extremity radiculopathy (also claimed as arm/hand numbness) is denied. An initial disability rating of 30 percent for service-connected left upper extremity radiculopathy (also claimed as arm/hand numbness) prior to August 31, 2021 and 40 percent thereafter is granted, subject to the regulations governing the payment of monetary awards. Special monthly compensation (SMC) based on loss of use of the left upper extremity is granted. FINDINGS OF FACT 1. The Veteran did not file a claim for entitlement to service connection for left upper extremity radiculopathy (also claimed as arm/hand numbness) earlier than July 18, 2014. 2. The preponderance of the evidence shows that the Veteran's non-dominant, left upper extremity radiculopathy disability picture more closely approximates no more than moderate incomplete paralysis of the upper radicular nerve group prior to August 31, 2021 and no more than severe incomplete paralysis of the upper radicular nerve group thereafter. 3. The Veteran's disability in his left upper extremity is manifested by subjective complaints of difficulty completing activities of daily living and loss of use due to pain and muscle atrophy. Moreover, the Veteran's left upper extremity disability amounts to loss of use of his left hand to warrant special monthly compensation. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 18, 2014 for the award of service connection for left upper extremity radiculopathy (also claimed as arm/hand numbness) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected left upper extremity radiculopathy (also claimed as arm/hand numbness) prior to August 31, 2021 and 40 percent thereafter have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8610. 3. The Veteran is entitled to special monthly compensation based on the loss of use of his left upper extremity. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1967. The Veteran is the recipient of the Purple Heart Medal. By way of history, in May 2019, the Board of Veterans' Appeals (Board) issued a decision, which in pertinent part, remanded the issue of entitlement to service connection for left arm and hand numbness. Following the Board's remand, a May 2020 rating decision granted service connection for left upper extremity radiculopathy (also claimed as arm/hand numbness) and assigned an evaluation of 20 percent, effective July 18, 2014. The Veteran was notified of the decision on June 2, 2020. The Veteran disagreed with the initial rating and effective date assigned for his left upper extremity radiculopathy and submitted a timely VA Form 10182 on June 2, 2021. In the VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. See June 2021 VA Form 10182. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Evidence was added to the claims file in support of other pending claims during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to an increased disability rating for left upper extremity radiculopathy, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Additionally, the Board notes the Veteran appealed the June 2020 Board decision that denied a claim of entitlement to an effective date earlier than the granted date of July 29, 2014, for the award of service connection for posttraumatic stress disorder (PTSD); and an initial rating in excess of 20 percent for lower left extremity peripheral nerve damage associated with a shrapnel wound to the United States Court of Appeals for Veterans Claims (Court). The Court recently issued a Corrected Joint Motion for Partial Remand in September 2021. Because these issues have been appealed under the Legacy system, and the present issues are appealed under the AMA, they will also be addressed in separate decisions. Lastly, the Veteran, through his representative, submitted an argument in favor of a higher initial rating for his left upper extremity radiculopathy, including entitlement to special monthly compensation (SMC) based on loss of use of the left upper extremity. Under Akles v. Derwinski, the Board has jurisdiction over a claim for special monthly compensation (SMC) as inferred based on the record. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that a claim for an increased rating can include entitlement to SMC as an inferred issue); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim). Accordingly, this issue has been separately characterized in the issues above. Earlier Effective Date 1. Entitlement to an effective date earlier than July 18, 2014 for the award of service connection for left upper extremity radiculopathy (also claimed as arm/hand numbness) The Veteran, through his private attorney, contends he should be granted an effective date earlier than July 18, 2014 for the award of service connection for left upper extremity radiculopathy (although claimed as arm/hand numbness). However, submissions from the Veteran and his private attorney do not indicate what earlier date they seek or why they believe an earlier effective date is warranted. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). The effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. Id. Effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In part, the Department replaced the informal/formal claims process with a standardized and more formal process. 38 C.F.R. § 3.155 (2016). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). Prior to March 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next of friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree or a claim for pension denied for the reason the disability was not permanently and totally disabling, receipt of one of the following may be accepted as an informal claim for increased benefits or an informal claim to reopen: The date of outpatient or hospital examination or date of admission to a VA hospital or uniformed services hospital. The date of receipt of evidence from a private physician when evidence furnished by or on behalf of the claimant is within the competence of the physician. 38 C.F.R. § 3.157(b) (2014). Here, the Veteran separated from service in 1967. Review of the record shows he requested service connection for his left shoulder in July 2005. Service connection was ultimately granted for status post avulsion fracture of the proximal humerus with residual rotator cuff syndrome of the left shoulder with calcific tendinitis in a February 2008 rating decision; he was assigned a disability rating of 20 percent, effective July 11, 2005. It was not until July 18, 2014, that the Veteran submitted medical records from Kaiser Permanente which showed treatment for his left shoulder then on July 27, 2014, he submitted a formal claim for left arm and hand numbness (left upper extremity radiculopathy). See July 2014 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. After reviewing the totality of the evidence, the Board finds that VA did not receive an application for compensation benefits pertaining to the Veteran's left arm and hand numbness prior to the receipt of the July 18, 2014 medical records, which was construed as an informal claim for left arm and hand numbness, and followed by a formal claim for service connection on July 27, 2014. There is simply no indication on the part of the Veteran or his private attorney of any intent to file a claim for service connection for his left arm and hand numbness either on a direct or secondary basis to his status post avulsion fracture of the proximal humerus with residual rotator cuff syndrome of the left shoulder with calcific tendinitis prior to July 2014. Moreover, the Veteran and his private attorney have also not identified such claims. Indeed, as noted above, the Veteran's private attorney has submitted no argument with respect to this issue. Instead, she generically stated in the VA Form 10182 (that she completed) that the Veteran disagreed with the "rating and effective date: left upper extremity radiculopathy." However, while she subsequently provided argument for why they believed the Veteran warranted an increased initial rating for his left upper extremity radiculopathy, no argument was provided as to the effective date assigned. In conclusion, entitlement to an earlier effective date for the award of service connection for this condition is denied. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected left upper extremity radiculopathy (also claimed as arm/hand numbness) The Veteran contends he is entitled to a disability rating higher than the 20 percent rating currently assigned for his left upper extremity radiculopathy. In particular, in August 2021, the Veteran's private attorney provided arguments in support of the claim for a higher disability rating. The private attorney argued the February 2015 VA examination reflected moderate incomplete paralysis of the median and ulnar nerves. Moreover, it was argued the November 2019 VA examination continued to document moderate symptoms of the left upper extremity, which is representative of at least a 30 percent disability rating under Diagnostic Code 8610. Additionally, the Veteran's private attorney highlighted the fact that the 2019 VA examination report noted the Veteran was unable to hold onto a walker due to "severe" weakness in his hands and arms. See Medical Treatment Records. The Veteran's left upper extremity radiculopathy is rated under Diagnostic Code 8610. Under this criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 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 Board notes that "Mild," as relevant to a physical condition, is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed March 18, 2020). "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 8610, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." 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). Turning to the evidence, the Veteran, who is right hand dominant, underwent a February 2015 VA examination in which the examiner noted decreased sensation in the Veteran's left hand and fingers. The examiner diagnosed moderate incomplete paralysis of the median and ulnar nerves. See February 2015 VA examination. However, a VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) performed in March 2015 did not document any radiculopathy in the left upper extremity. See March 2015 DBQ. In fact, muscle strength testing showed normal strength with no muscle atrophy on the left side. The Veteran then underwent another VA examination in November 2019, wherein the examiner diagnosed left upper extremity radiculopathy. On examination, the Veteran showed no constant or intermittent pain in the left upper extremity but moderate paresthesias and/or dysesthesias as well as mild numbness were noted. No muscle atrophy was noted but he did have hypoactive reflexes and decreased sensation in the shoulder area on the left side. His long thoracic nerve was found to be normal on the left side, but mild incomplete paralysis was found on the left upper radicular group. The Veteran did not use an assistive device for ambulation and functionally, it was noted he had difficulty using his arm and hand. See November 2019 VA examination. More recently, in an August 2021 private medical evaluation completed by Dr. M.S., the Veteran was reported to suffer from "significant, virtually constant pain and parasthesia in his left upper extremity to the degree that both significantly impact his left upper extremity's ability to function". Furthermore, it was reported the Veteran suffered from a loss of strength impacting his ability to grip objects, and it was noted he could not use his left upper extremity to open up various bottles, jars, etc. Lastly, Dr. M.S. explained that the Veteran's range of motion was significantly restricted such that he could not use the extremity to drive a car. Dr. M.S. found these symptoms to be indicative of a severe disability of the upper left extremity, and he opined there would be no change in the Veteran's level of function as it related to his left upper extremity and he would equally well-served by amputation with use of a suitable prosthetic application. See August 2021 Private Medical Opinion. Based on the foregoing evidence prior to August 31, 2021, the Board finds that the evidence of record supports a rating of 30 percent for the Veteran's left upper extremity radiculopathy, which is his non-dominant extremity. The evidence shows that the Veteran's left upper extremity radiculopathy has consistently caused him issues with using his arm and hand as well as with gripping. Moreover, the 2015 and 2019 VA examiners noted moderate paresthesias and/or dysesthesias as well as mild numbness upon examination prior to August 31, 2021. There is no evidence to support a finding of a severe impairment until the August 31, 2021 private medical statement by Dr. M.S. Specifically, beginning on August 31, 2021, the Board finds a disability rating of 40 percent is supported by the record. In support of that finding, the more recent private medical opinion in 2021 described worsening symptomatology in regard to the Veteran's ability to grip objects as well as strength to the level of severe. In fact, Dr. M.S. reported the Veteran was no longer able to grip objects, including an inability to use his left upper extremity to open various bottles, jars. etc. Moreover, his range of motion was so restricted he could not drive a car. Such evidence suggests the existence of severe radicular symptoms. Therefore, in giving the Veteran the benefit of the doubt, the Board finds that a rating of 40 percent for left upper extremity radiculopathy is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8610; Fenderson, supra. Despite the August 31, 2021 medical opinion by Dr. M.S., there remains no objective evidence that the Veteran suffers from complete paralysis of the minor extremity in order to warrant a higher rating of 60 percent for any period on appeal. Accordingly, and in consideration of the foregoing evidence, the Board finds that, an initial disability rating of 30 percent, but no higher, prior to August 31, 2021, and 40 percent, but no higher, thereafter for left upper extremity radiculopathy (also claimed as arm/hand numbness) is warranted under Diagnostic Code 8610. 38 U.S.C. § 5107(b); Gilbert, supra; Fenderson, supra. 3. Entitlement to special monthly compensation (SMC) based on loss of use of the left upper extremity 4. As previously discussed, the Veteran, through his private attorney, argues he is entitled to SMC(k) based upon loss of the left upper extremity. 5. Special monthly compensation is a special statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. 6. The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether such acts as grasping and manipulation in the case of the hand, or balance and propulsion in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which would constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3.5 inches or more. 7. The Veteran has been examined on multiple occasions to determine the functional ability of his left upper extremity. 8. Notably, following an examination of the Veteran and review of his claims file, the 2015 and November 2019 VA examiners found the Veteran's left upper extremity radiculopathy did not cause functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. 9. In contrast to those opinions, the Veteran submitted an August 2021 private medical opinion by M.S., M.D. which concluded if the Veteran were to undergo amputation of the left upper extremity and be provided with suitable prosthetic appliance, his functionality would not change. In support of that conclusion, Dr. M.S. highlighted how the Veteran suffered from a loss of strength, inability to grip objects (unable to open various bottles, jars or brush his teeth or hair) as well as a significantly restricted range of motion such that he could not drive a car. See August 2021 Medical Statement. 10. The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The Board finds that the evidence is sufficient to show that the Veteran has lost the use of his left upper extremity. 11. Given the fact the record includes the medical opinion by Dr. M.S. which clearly opined the Veteran's functionality would not change having undergone an amputation and using a prosthetic appliance, the Board finds that this evidence weighs in support of a finding that the Veteran's left upper extremity disability amount to loss of use of the left upper extremity. Therefore, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to SMC for loss of use of his left extremity. 38 U.S.C. § 1114 (m), 38 U.S.C. § 3.350. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.