Citation Nr: 21020789 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-10 115A DATE: April 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of right brachial plexus stretch injury secondary to fall is denied. FINDINGS OF FACT 1. The Veteran had no more than moderate incomplete paralysis of the right upper extremity. 2. Veteran’s symptoms are associated with cervical radiculopathy, not his brachial plexus stretch injury.   CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for brachial plexus stretch injury secondary to fall has not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 4.27, 4.124, 4.124a, Diagnostic Code 8411.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims folder. With respect to the Board hearing, the undersigned VLJ clarified the issue on appeal and suggested the Veteran to file additional claims. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. In September 2018, the Board remanded this case for further development. The September 2018 remand required that the VA schedule the Veteran for an examination to determine the frequency and severity of all manifestations associated with his brachial plexus disability. Accordingly, the Board’s remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 10 percent for brachial plexus stretch injury secondary to fall The Veteran contends that his brachial plexus stretch injury is worsening and warrants a disability rating in excess of 10 percent. See June 2015 VA 646 Statement. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Disability evaluations 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 his symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). 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 (2016). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 (2016), where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's disability is rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8411, which pertains to the eleventh cranial nerve. VA’s Schedule for Rating Disabilities does not provide rating criteria specifically for neuralgia of the eleventh cranial nerve. The RO has assigned a 10 percent rating for Veteran’s brachial stretch injury considering the codes to include Diagnostic Code 8211. A 10 percent rating for moderate incomplete paralysis; a 20 percent rating for severe incomplete paralysis; and a 30 percent rating for complete paralysis of the nerve. Id. A note to the Diagnostic Code states that ratings under this code are dependent upon loss of motor function of sternomastoid and trapezius muscles. The words "moderate" and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2016). Disabilities in this field are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestation and injury to the skill. 38 C.F.R. § 4.120 (2016). When a nerve is characterized by dull and intermittent pain, it is to be rated on the same scale with maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2016). 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 (2016). The Board notes that the Veteran provided private treatment records from 2015 and 2016. The records reported that the Veteran was complaining of shoulder, neck and upper arm pain that he attributed to his brachial plexus stretch injury. The Veteran reported that he has felt weaker in his arms with less grip strength and using his arms for prolonged activity exacerbates his symptoms. After a set of nerve tests on August 2015, a doctor reported that there was electrodiagnostic evidence of a chronic multi-level cervical radiculopathy on the right side of Veteran. In September 2015, another private doctor associated Veteran’s neck pain with a diagnosis of cervical radiculopathy. After continued testing and imaging Veteran was diagnosed with cervical spondylosis, cervical degenerative disc disease and cervical radiculopathy on June 2016. The Board also notes that the Veteran submitted a service connection claim for cervical neck condition in accordance with the undersigned VLJ’s suggestion during Veteran’s June 2018 hearing. In September 2018 the Board remanded the Veteran’s case to obtain an updated examination for Veteran brachial plexus claim. The Board’s remand instructed the VA examiner to indicate which symptoms the Veteran was having were attributable to his brachial plexus disability and to any other disability, such as Veteran’s cervical spine disability. In August 2019, an examination was provided to the Veteran. The VA examiner previously did an in-person examination in 2007 for right brachial plexopathy and cervical disc disorder. The examiner stated that there was worsening mild disc height loss with endplate sclerosis and osteophytosis. Further the examiner stated that there was overall worsening mild to moderate bilateral and uncovertebral joint hypertrophy as well as worsening mild to moderate bilateral mid and inferior cervical facet arthropathy. The examiner concluded that since he had last seen the Veteran in 2007, Veteran’s right upper extremity strength had deteriorated. In August 2020, an addendum assessment was made by a VA examiner. The VA examiner reviewed the previous August 2019 examination. The examiner stated that the symptoms stated in the earlier examination were compatible with cervical radiculopathy. The examiner further explained that x-rays corroborated with the symptoms showed extensive cervical spondylosis. The same VA examiner made an addendum medical opinion on October 2020. The examiner stated that there is no evidence in the August 2019 examination that the Veteran continued to have a brachial plexus injury and that the Veteran should be diagnosed with cervical radiculopathy. The examiner explained that the two injuries are too far different to be considered secondary to one another. The examiner further elaborated that the two injuries have different etiology and mechanisms. Therefore, Veteran’s radiculopathy cannot be a progression of brachial plexus injury. Based on the foregoing, the evidence shows that the Veteran’s brachial plexus injury did not worsen, but that Veteran had symptoms associated with his diagnosed cervical radiculopathy instead. In sum, the evidence establishes that the appellant has neuropathy. However, the neuropathy that he has in unrelated to the service-connected brachia plexus injury.   Regulation establishes that the use of non-service-connected conditions may not be considered in the evaluation of a service-connected disability. Furthermore, the evidence establishes that the manifestations may be distinguished. All the current symptoms are related to cervical pathology. A preponderance of the evidence is against the claim. A rating more than 10 percent for right brachial plexus stretch injury is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.