Citation Nr: 21022376 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-34 968 DATE: April 15, 2021 ORDER Entitlement to a 70 percent rating for status-post resection of malignant lymph node, resulting in severing of brachial plexus, leading to brachial plexitis is granted. FINDING OF FACT The Veteran’s left upper extremity radiculopathy is manifested in severe incomplete paralysis, but not complete paralysis. CONCLUSION OF LAW The criteria for a 70 percent rating for status-post resection of malignant lymph node, resulting in severing of brachial plexus, leading to brachial plexitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from April 2005 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in November 2018 and most recently in July 2020 for additional development. The case has since returned to the Board for appellate consideration. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran’s left upper extremity neurological condition. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran’s neurological condition has been consistent throughout the appeal period. 1. Entitlement to a 70 percent for status-post resection of malignant lymph node, resulting in severing of brachial plexus, leading to brachial plexitis is granted. The Veteran is currently in receipt of a 40 percent rating for status-post resection of malignant lymph node, resulting in severing of brachial plexus, leading to brachial plexitis under DC 8513. 38 C.F.R. § 4.124a, DC 8513. The Veteran’s dominant hand is his left hand. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups of nerves. 38 C.F.R. § 4.124a, DC 8513. Diagnostic Code 8513 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. Id. Complete paralysis of all radicular groups is rated 90 percent disabling on the major side and 80 percent on the minor side. Id. The term “incomplete paralysis” with this and other peripheral nerve injuries 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Turning to the relevant evidence, the Veteran’s VA treatment records indicate ongoing treatment of his brachial plexitis. In the March 2012 peripheral nerves VA examination, the examiner noted diagnoses of brachial plexus nerve severing during surgery and brachial plexitis. The examiner noted that the Veteran displayed moderate incomplete paralysis in the left musculocutaneous nerve. With respect to symptoms, the Veteran reported that, due to his nerve condition, his left arm would give out and would feel pain and swelling in the 4th and 5th fingers when writing. The Veteran also reported that he would get numbness on the left side of his jaw. The Veteran was not noted to have muscle atrophy. In a July 2013 VA primary care note, the Veteran was noted to have muscle atrophy in the left upper extremity and left hand ulnar aspect. In the November 2020 VA examination, the examiner noted a diagnosis of status post resection of malignant lymph node resulting in severing brachial plexus leading to brachial plexitis. The Veteran was noted to have moderate incomplete paralysis in the upper left radicular group. With respect to symptoms, the Veteran was noted to have severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in his left upper extremity. The Veteran reported that his neurological condition has worsened. He states he had pain that radiates down to his leg, cramping, locking in his neck, and popping in his shoulder. The Veteran also reported experiencing migraine headaches daily. The Veteran was not noted to have muscle atrophy. Having reviewed the evidence of record, including the Veteran’s lay statements, the Board finds the Veteran’s left upper extremity radiculopathy most nearly approximates symptoms equivalent to severe incomplete paralysis in the left upper extremity. The November 2020 VA examiner noted that the Veteran experienced severe symptoms of constant pain, paresthesias and/or dysesthesias, and numbness. A July 2013 VA note indicated the Veteran had muscle atrophy in the left upper extremity and left-hand ulnar aspect. The Veteran reported symptoms of giving way of the arm, swelling in the fingers, and with severe pain. A higher rating for complete paralysis is not warranted, there is no evidence of complete paralysis of the left upper extremity. Accordingly, based on the evidence a rating of 70 percent for left upper extremity radiculopathy is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.