Citation Nr: 21008738 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-17 089 DATE: February 17, 2021 ORDER Entitlement to an increased evaluation of 30 percent, but no higher, for sensory deficit of the left upper extremity, is granted. FINDING OF FACT Resolving reasonable doubt, the evidence of record shows the Veteran’s sensory deficit of the left upper extremity manifests at moderate incomplete paralysis of the radial, median, and ulnar nerves. CONCLUSION OF LAW The criteria for an evaluation of 30 percent for sensory deficit of the left upper extremity, has been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, DC 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from June 1965 to June 1986. This matter is on appeal from a June 2011 rating decision. In a July 2018 Board decision, the Board denied entitlement to an increased evaluation in excess of 10 percent prior to June 27, 2012 and 20 percent from June 27, 2012 for sensory deficit of the left upper extremity. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in March 2019, issued a joint motion for partial remand (JMPR) to vacate and remand the issue back to the Board. The Board remanded this appeal in June 2016 and October 2019 for further development. During the pendency of the appeal, a November 2020 rating decision increased the evaluation of the Veteran’s sensory deficit of the left upper extremity to 20 percent effective from October 14, 2009, encompassing the appeal period. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran’s sensory deficit of the left upper extremity remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes 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 terminology such as “severe” 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Sensory deficit of the left upper extremity The Veteran is currently service connected for sensory deficit of the left upper extremity evaluated at 20 percent under Diagnostic Code 8414. The Board notes that the Veteran is right hand dominant; thus, the left upper extremity is evaluated as his minor extremity for rating purposes. Disability rating for nerve impairments in the arms are rated according to either the specific nerves affected or to impairment of a nerve group as a whole. Diagnostic Code (DC) 8514 address complete and incomplete paralysis of the radial nerve. Under DC 8514 incomplete paralysis of the radial nerve that is mild is rated at 20 percent for both the major and minor extremity. Moderate incomplete paralysis warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Severe incomplete paralysis is rated at 50 percent for the major extremity and 40 percent for the minor extremity. The lower radicular group includes the radial nerve, median nerve, and ulnar nerve. Disabilities affecting the lower radicular group are rated under DC 8512 complete and incomplete paralysis of the radial nerve, median nerve, and ulnar nerves. Under DC 8512 incomplete paralysis of the lower radicular group that is mild is rated at 20 percent for both the major and minor extremity. Moderate incomplete paralysis warrants a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. Severe incomplete paralysis is rated at 50 percent for the major extremity and 40 percent for the minor extremity. 38 C.F.R. § 4.124a. Under Diagnostic Code 8513 (all radicular groups), a disability rating of 20 percent is assigned for mild incomplete paralysis all radicular groups on the dominant and nondominant sides. A disability rating of 30 percent is assigned for moderate incomplete paralysis of the nondominant upper extremity, and a disability rating of 40 percent is assigned for moderate incomplete paralysis of the dominant upper extremity. A disability rating of 60 percent is also assigned for severe incomplete paralysis of the nondominant upper extremity, and a disability rating of 70 percent is assigned for severe incomplete paralysis of the dominant upper extremity. A disability rating of 80 percent is assigned for complete paralysis of the nondominant upper extremity, and a disability rating of 90 percent is assigned for complete paralysis of the dominant upper extremity. The Veteran was afforded a September 2010 VA examination. The Veteran reported symptoms of paresthesia and numbness without any functional impact and impairment. The VA examiner found the Veteran demonstrated normal reflex but had sensory deficit in the left thumb; index finger; lateral long finger; ring finger; and little finger. The examiner noted “the most likely peripheral nerve [affected] is radial nerve”. In a January 2013 VA examination for the Veteran’s cervical spine, the VA examiner noted the Veteran with normal sensation; the examiner then found the Veteran with symptoms of radiculopathy with moderate numbness in the left upper extremity. The examiner indicated involvement of the upper and middle radicular nerve root groups in the left side at moderate severity. In a separate January 2013 VA examination for peripheral nerves, the examiner found the Veteran with symptoms of moderate constant pain; paresthesias and/or dysesthesias; and numbness in the left upper extremity. The Veteran demonstrated full strength, reflex and sensation. The examiner found the Veteran’s radial nerve on the left side to be affected and indicated it at mild severity. In a submitted June 2016 multiple sclerosis disabilities benefits questionnaire (DBQ), the treating provider indicated the Veteran demonstrated 4/5 strength in the left upper extremity; normal reflex; decreased sensation in the left upper extremity; and mild muscle weakness. In a September 2016 VA examination for multiple muscle weakness, the Veteran demonstrated 4/5 strength; normal reflex; and normal sensation in the left upper extremity. The examiner found the Veteran with moderate muscle weakness in the left upper extremity. In a separate September 2016 VA examination for peripheral nerves, the examiner found the Veteran with symptoms of moderate paresthesias and/or dysesthesias. The Veteran demonstrated 4/5 strength; normal reflex; and decreased sensation in the left upper extremity. The examiner found involvement of the left radial, median, and ulnar nerve and found all affected nerves at moderate severity. In a March 2017 VA examination for multiple sclerosis, the Veteran demonstrated full strength with normal reflex and sensation. The examiner did not find any muscle weakness in the left upper extremity. In a separate March 2017 VA examination for peripheral nerves, the Veteran denied difficulty using his left hand with no pain or sensory complaints with activity; however, the Veteran reported constant left-sided paresthesias to involve his face, arm and leg. The Veteran demonstrated full strength, normal reflex and normal sensation. The VA examiner found involvement of the median nerve at mild severity. In July 2018 a Board decision denied an increased evaluation in excess of 10 percent prior to June 27, 2012 and then 20 percent thereafter for sensory deficit of the left upper extremity. In a March 2019 CAVC Joint Motion for Remand (JMR), the Court found the Board decision failed to address the applicability of DC 8514 for paralysis of the radial nerve as the September 2010 VA examiner found involvement of the radial nerve; as such, the Court found remand to the Board was warranted to address the applicability of pertinent diagnostic codes. The Board remanded this appeal in October 2019 for further development. The Board decision found there was inconsistent findings relating to the Veteran’s sensory deficit of the left upper extremity and requested an addendum opinion to clarify what nerves were involved and attributed to the Veteran’s cervical spine disability or multiple sclerosis. In an October 2020 addendum opinion, the VA examiner found after review of the record that the Veteran had a long history of cervical degenerative disc disease associated with mild radiculopathy of the left upper extremity. The examiner noted the Veteran had multiple sclerosis since 1986 that recently began affecting the upper and lower extremities. The examiner found that the Veteran’s cervical spine disability was the cause of his left upper extremity complaints until 2017 and then the Veteran’s multiple sclerosis began causing overlapping symptoms affecting the left upper and lower extremities. In a November 2020 addendum opinion, the VA examiner found that the Veteran’s ulnar, median, and radial nerves in his left upper extremity were affected by his cervical degenerative disc disease and found it “impossible to delineate peripheral nerve involvement due to [multiple sclerosis]”; the examiner noted that multiple sclerosis was a central nervous system disease that manifested in multiple ways and that there was no way to identify a specific peripheral nerve affected by multiple sclerosis without speculation. After review of the evidence of record and resolving reasonable doubt, the Board finds that a 30 percent rating under Diagnostic Code 8513 is warranted for the Veteran’s sensory deficit of the left upper extremity. As noted above, a 30 percent rating is warranted under Diagnostic Code 8513 for moderate paralysis of all radicular groups of the minor extremity. The September 2016 VA examiner specifically found involvement of the radial, median, and ulnar nerve at moderate severity; and the November 2020 VA examiner opined that the Veteran’s ulnar, median, and radial nerves in his left upper extremity were affected. The Board notes that ratings in excess of 30 percent (nondominant) and 40 percent (dominant) are available under Diagnostic Codes 8514 (radial nerve), 8515(medial nerve) and 8516 (ulnar nerve). However, these higher ratings are warranted for nerves which demonstrate severe incomplete paralysis which has not been demonstrated. Notably, the September 2016 VA examiner also specifically described the Veteran’s sensory deficit of the left upper extremity as moderate. As there is no evidence of severe incomplete paralysis of the upper left extremity in the medical evidence and examinations of record, a higher rating is not applicable. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s sensory deficit of the left upper extremity However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion and other evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings and other evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As a result, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran’s sensory deficit of the left upper extremity as he has exhibited symptoms consistent with moderate incomplete paralysis in the radicular groups of the minor extremity. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.