Citation Nr: 21005722 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-14 819 DATE: February 2, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for radiculopathy, left upper extremity associated with cervical stenosis, status post-anterior cervical discectomy with fusion and degenerative arthritis, is denied. FINDING OF FACT Radiculopathy of the left upper extremity was not productive of the equivalent of complete paralysis of the ulnar nerve, or the equivalent of complete paralysis or severe incomplete paralysis of all radicular nerve groups. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from August 1960 to August 1963, August 1963 to November 1963, and November 1963 to May 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA), Veterans Benefits Administration, Regional Office (RO). This issue was before the Board in June 2020 and subsequently remanded in order for the Veteran to be provided an additional VA examination. The requested development is again before the Board for additional appellate consideration. 1. Entitlement to an increased rating in excess of 30 percent for radiculopathy, left upper extremity associated with cervical stenosis, status post-anterior cervical discectomy with fusion and degenerative arthritis. In this post-remand case, the Veteran contends he is entitled to an increase rating in excess of 30 percent for left upper extremity radiculopathy associated with cervical stenosis, status post-anterior cervical discectomy with fusion and degenerative arthritis. By way of history, the Veteran was granted service connection in a November 2018 rating decision. The Veteran’s left upper extremity radiculopathy is currently rated at 30 percent disabling under Diagnostic Code 8513 with an effective date of August 20, 2018. The Veteran’s main contention is that he believes his left upper extremity should be rated the same as his right upper extremity which is rated at 40 percent disabling. In an August 2018 lay statement, the Veteran maintained his left upper extremity’s symptoms are approximate in severity to his right upper extremity. The record indicates he is right hand dominant, and as such, he is rated under the non-dominant hand rating structure for his left upper extremity. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DC). 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability from neurological conditions is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The Veteran's left upper extremity radiculopathy is currently rated under 38 C.F.R. § 4.124a, DC 8513, applicable to diseases of the peripheral nerves, and specifically paralysis of all radicular groups. Under DC 8513 for the major side, a 20 percent rating is warranted for mild incomplete paralysis, a 40 percent rating is warranted for moderate incomplete paralysis, a 70 percent rating is warranted for severe incomplete paralysis, and a 90 percent rating is warranted for complete paralysis. 38 C.F.R. § 4.124a, DC 8513. As was previously noted, the evidence of record indicates that the Veteran is right hand dominant and his claim is for an increased rating for his left upper extremity. With regard to the non-dominant extremity, a 30 percent rating is warranted for moderate incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis. An 80 percent rating is warranted for complete paralysis. Words such as "severe," "moderate," and "mild" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In applying the schedular criteria for rating peripheral nerve conditions, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. Here, per the Board’s remand instructions, the Veteran was afforded a VA examination in October 2020. The examiner found the Veteran to experience mild intermittent pain and paresthesias and/or dysesthesias of the left upper extremity to include moderate numbness. Furthermore, the examiner found evidence of decreased sensation in his inner/outer forearm and hand/fingers and moderate incomplete paralysis of the ulnar nerve, which would correspond to moderate incomplete paralysis and a 20 percent rating under Diagnostic Code 8516. August 2018 to September 2020 VA treatment records reflect an October 2018 diagnosis of mild to moderate cervical radiculopathy in the left upper extremity based on electromyogram findings from August 2018, which is consistent with the findings from the October 2020 VA examination. His subjective complaints at this time included weakness, tremors, and numbness in the arms, which had “started in the left arm.” Unfortunately, the Board is unable to grant a disability rating of 40 percent or more for the Veteran’s left upper extremity radiculopathy. The evidence shows the Veteran is right hand dominant. A 40 percent disability rating is warranted for moderate incomplete paralysis of the dominant hand. In contrast, a 30 percent rating is warranted for moderate incomplete paralysis of the non-dominant arm as is the case here. The Board further notes that in addition to the Veteran’s complaints of intermittent pain, the examiner’s findings of paresthesias and/or dysesthesias of the left upper extremity to include moderate numbness and decreased sensation in his inner/outer forearm and hand/fingers are primarily sensory in nature, and the note in the schedule that precedes the ratings under Diagnostic Codes 8513 and 8516 specifically provides that when involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The evidence also does not show that the Veteran’s left upper extremity radiculopathy exhibits severe incomplete paralysis; therefore, an increased rating of 60 percent is clearly not warranted. Higher ratings are available for complete paralysis or for severe incomplete paralysis. However, the evidence weighs against manifestations of such severity. More specifically, examination reveals that the Veteran’s disability most nearly approximates moderate incomplete paralysis under Diagnostic Code 8513. Therefore, the Board finds the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran’s service-connected left upper extremity radiculopathy. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.