Citation Nr: 21024973 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-31 125 DATE: April 27, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity is denied. Entitlement to a rating of 10 percent, but no higher, for radiculopathy of the left lower extremity is granted effective March 30, 2015. Entitlement to a rating of 10 percent, but no higher, for radiculopathy of the right lower extremity is granted effective March 30, 2015. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s radiculopathy of the left upper extremity manifested, at worst, in mild incomplete paralysis. 2. Throughout the period on appeal, the Veteran’s radiculopathy of the right upper extremity manifested, at worst, in mild incomplete paralysis. 3. Symptoms of the Veteran’s radiculopathy of the left lower extremity became factually ascertainable on March 30, 2015 and manifested, at worst, in mild incomplete paralysis. 4. Symptoms of the Veteran’s radiculopathy of the right lower extremity became factually ascertainable on March 30, 2015 and manifested, at worst, in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8510. 2. The criteria for entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8510. 3. The criteria for entitlement to a rating of 10 percent, but no higher, for radiculopathy of the left lower extremity have been met as of March 30, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a rating of 10 percent, but no higher, for radiculopathy of the right lower extremity have been met as of March 30, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2004 to September 2008. This case comes on appeal of an April 2011 rating decision. The Veteran testified before the Board in March 2018. These matters were previously before the Board on multiple occasions. Pertinently, in May 2018, the Board remanded claims for increased ratings of cervical and lumbar spine disabilities. At that time, the Board observed that the Veteran’s medical record demonstrated complaints of associated neurological symptoms and included instructions for evaluation of those symptoms in the remand. In May 2019, the Board determined that the record contained sufficient information to adjudicate the issues of increased ratings for the Veteran’s cervical and lumbar spine disabilities. However, in the examinations the Veteran underwent after the May 2018 remand, the examiners had not addressed the Veteran’s neurological symptoms. Therefore, the Board decided on the issues of increased ratings for the Veteran’s cervical and lumbar spine disabilities while at the same time remanding claims of entitlement to separate compensable ratings for radiculopathy of the bilateral upper and lower extremities. In October 2020, the agency of original jurisdiction (AOJ) granted entitlement to separate ratings of 20 percent for radiculopathy of the left and right upper extremities, effective the date of the Veteran’s claim for service connection for a cervical spine disability. Then, in December 2020, the AOJ granted entitlement to separate 10 percent ratings for radiculopathy of the left and right lower extremities, effective October 24, 2020—the date of a VA examination showing a diagnosis of the condition. Notably, the Veteran is presumed to seek the highest rating available unless the record explicitly demonstrates otherwise. AB v. Brown, 6 Vet. App. 35, 38 (1993). Here, the rating for the Veteran’s bilateral upper extremity radiculopathy represents only a partial grant of benefits sought, since the rating schedule for radiculopathy goes beyond 20 percent. Likewise, the rating for lower extremity radiculopathy is a partial grant of benefits as well. Indeed, VA must evaluate whether a separate rating is warranted throughout the entire appeal period. Accordingly, since the October 2020 decision represented only partial grants of the benefits sought, the AOJ returned the case to the Board after issuing its decision. In doing so, however, the AOJ did not issue a supplemental statement of the case (SSOC). In the absence of the SSOC, the Board could not adjudicate the issues without prejudice to the Veteran’s due process rights. Therefore, in January 2021, the Board remanded the case to allow the AOJ to issue the SSOC, and to afford the Veteran the full slate of appellate choices guaranteed to him by law. In February 2021, the AOJ issued an SSOC, and the case is now properly before the Board. The Board offers this procedural history, in part, to emphasize what issues remain on appeal. Regarding radiculopathy of the bilateral upper extremities, since that disability has been granted with an effective date of the Veteran’s claim for a cervical spine disability, the only issue that remains is whether the Veteran is entitled to a higher rating at any point during the period on appeal. However, regarding radiculopathy of the bilateral lower extremities, since the disability was only granted effective October 2020, the Board will consider whether it is factually ascertainable that the disability manifested prior to that date, as well as whether the Veteran is entitled to a higher rating at any point during the period on appeal. Increased Rating Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). 1. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity As was discussed above, the Veteran filed a claim of entitlement to service connection for a cervical spine disability on September 29, 2010. During the course of this appeal, the AOJ granted entitlement to separate 20 percent ratings for radiculopathy of the left and right upper extremities, respectively, from the date of the cervical spine claim. Thus, at issue is whether the Veteran is entitled to an initial rating in excess of 20 percent for radiculopathy of either the left or right upper extremity. The Veteran’s radiculopathy of the left and right upper extremities is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8510. Diagnostic Code 8510 covers paralysis of the upper radicular group. Under the rating schedule, a rating of 20 percent is warranted for mild incomplete paralysis of either the major or minor side of the body. For moderate incomplete paralysis, a 40 percent rating applies to the major side, while a 30 percent rating applies to the minor side. For severe incomplete paralysis, a 50 percent rating applies to the major side, while a 40 percent rating applies to the minor side. For complete paralysis, a 70 percent rating applies to the major side, while a 60 percent rating applies to the minor side. The Diagnostic Code specifies that “complete paralysis” indicates that all shoulder and elbow movements are lost or severely affected, but hand and wrist movements need not be affected. The record demonstrates that the Veteran was treated at Dallas VA Medical Center in March 2009 for complaints of neck pain, mainly on the right side. At that time the Veteran had no complaints of pain in his arms or back. In December 2010 VA treatment, records show the Veteran was seen for follow up on neck pain. At that time, he noted that the pain radiated to the right shoulder area and to the right arm. A few days later, treatment records show the Veteran reported that sharp pains would radiate to his right arm with some numbness and tingling. The Veteran underwent a VA spine examination in January 2011. At that time, the Veteran reported pain in his neck that generally radiated into the right trapezius and upper thoracic spine. The Veteran denied any radicular symptoms in either upper extremity. Physical testing of the upper extremities was judged to be normal bilaterally. In a July 2011 VA chiropractic visit, the Veteran reported neck pain radiating to the back of the arms bilaterally. January 2012 chiropractic treatment records show that the Veteran described a progression of his neck pain with daily occurrences of tingling going down the back of both arms to the elbow. In November 2013 VA treatment, the Veteran reported having occasional sharp pain that radiated down his bilateral upper extremities. In May 2014 pain management treatment, the Veteran stated that his neck pain was exacerbated by sitting for long periods of time with his head unsupported and that pain rarely radiated down into his right upper arm. In June 2015, the Veteran underwent a VA neurology consultation. At that time his chief complaint was right shoulder pain with paresthesias. He reported having neck pain with intermittent tingling in the right arm, as well as a constant pain in the trapezius area with greater pain in the right than left. The Veteran described right arm tingling from his shoulder to his elbow that occurred one or two times per month, lasting for a couple of days, noting that the tingling was not painful but was more of a nuisance. In July 2016, the Veteran underwent a new VA cervical spine examination. The Veteran reported intermittent pain in his cervical region with some radiation into his right trapezius muscle. On physical examination, upper extremity muscle testing was normal, as were reflex examination and sensory examination. The examiner reported no other signs or symptoms due to radiculopathy. The Veteran once again underwent a VA cervical spine examination in February 2019. There, the examiner reported muscle strength testing, reflex examination, and sensory examination were all normal. According to the examiner, there were no other signs or symptoms due to radiculopathy. The Veteran then underwent a new VA cervical spine examination in August 2019. There, the examiner reported that deep tendon reflex examination showed hypoactive reflexes bilaterally, but that the sensory examination was normal. The examiner reported radiculopathy symptoms of mild pain, mild paresthesias and/or dysesthesias, and mild numbness bilaterally, all of which indicated mild radiculopathy of the right and left side. Most recently, to more specifically evaluate his radiculopathy conditions, the Veteran underwent a VA peripheral nerves examination in October 2020. There, the examiner reported mild constant pain of the right upper extremity and mild intermittent pain of the left upper extremity. The examiner also reported mild numbness and mild paresthesias and/or dysesthesias of the right upper extremity, with no such symptoms of the left upper extremity. Muscle strength testing, reflex examination, and sensory examination were all normal. The need for special testing for median nerve evaluation was not indicated by the Veteran’s symptoms. The examiner reported that the Veteran’s symptoms reflected mild incomplete paralysis of the upper radicular group on the left and right sides. Based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted for radiculopathy of the left or right upper extremity at any point during the period on appeal. As was explained above, a 20 percent rating is warranted for mild incomplete paralysis of the upper radicular group on either the major or minor side of the body. Here, the evidence demonstrates that the Veteran’s radiculopathy of the left and right upper extremities manifests, at most, as mild incomplete paralysis. Indeed, the Veteran’s medical records suggest that his radiculopathy symptoms have increased and decreased in both severity and frequency over time. Initially, the Veteran experienced only neck pain with no radiculopathy symptoms. As the condition worsened, the Veteran began to experience occasional pain radiating into his trapezius muscle and shoulder. At times, the Veteran reported tingling and numbness in the back of his arms down to his elbows, however, these symptoms were not consistent and appear to have subsided in other evaluations. In early VA examinations, the Veteran’s complaints of radiculopathy symptoms were mostly subjective and physical testing did not show any deficiencies in muscle strength, reflex, and sensation. At the most recent examination, specifically evaluating the peripheral nerves, the examiner found the Veteran’s symptoms in both the right and left upper extremity to be mild. Thus, even at their greatest severities, the Veteran’s left and right upper extremity radiculopathy symptoms are shown by a preponderance of the evidence not to be greater than mild. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and a rating in excess of 20 percent is not warranted for either disability. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, there is no indication that the Veteran’s symptoms are caused by disability of a nerve other than the upper radicular group. Therefore, any additional rating under a separate diagnostic code is not warranted. 3. Entitlement to an increased initial rating for radiculopathy of the left lower extremity 4. Entitlement to an increased initial rating for radiculopathy of the right lower extremity As was briefly discussed above, the Veteran first filed a claim for service connection for a lumbar spine disability in October 2010. The current claims for increased ratings for radiculopathy of the left and right lower extremities stem from that October 2010 claim. However, in granting separate service connection for left and right lower extremity radiculopathy, the AOJ assigned an effective date of October 24, 2020. Therefore, in evaluating the propriety of the disability ratings for left and right lower extremity radiculopathy, the Board will also evaluate whether an earlier effective date is warranted during the period on appeal. In other words, the Board will determine whether it is factually ascertainable that radiculopathy was present at any point between when the Veteran filed the October 2010 claim, and when the AOJ granted separate service connection for radiculopathy in October 2020. The Veteran’s radiculopathy of the right and left lower extremities is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. The Veteran has been assigned separate 10 percent ratings for each side. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis in which the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost. The Veteran first underwent a VA lumbar spine examination in January 2011. At that time, the examiner reported that the Veteran’s low back pain tended to be paraspinal in the mid-lumbar back and the midline. There was no discussion of symptoms of radiculopathy. Testing of sensation in the lower extremities was judged to be normal bilaterally. In May 2014 pain management treatment, the Veteran denied any weakness in the legs. On a neuromuscular examination at that time, there were no reports of any symptoms of radiating pain, tingling, or numbness. In a March 30, 2015 treatment report, the Veteran was noted to complain of a burning sensation of his knees and legs when standing for more than 15 minutes. This complaint was recorded as paresthesia of the lower extremity. In July 2016, the Veteran underwent a new VA examination of the back. At that time, the Veteran reported getting back pain approximately 3 days per week. He stated that there was no radiation of pain down his legs, but that he did experiences some tingling in his right buttock. Sensory examination, muscle strength testing, and reflex examination were all normal for the bilateral extremities. Straight leg testing was negative bilaterally, and the examiner found no evidence of radicular pain or other signs or symptoms due to radiculopathy. In March 2017 VA treatment, the Veteran reported radiating pain from the lumbar spine down the right posterior thigh. The Veteran then underwent a new VA back examination in February 2019. There, the Veteran reported pain that would shoot down his legs at times. Muscle strength testing was normal, as were reflex and sensory examinations. Straight leg testing was negative, and the examiner reported no other signs or symptoms due to radiculopathy. The Veteran then underwent a new VA back conditions examination in August 2019. At that time, the Veteran did not describe specific symptoms of radiculopathy. Muscle strength was reduced—with active movement against some resistance—in all lower extremities. Reflex and sensory examination was normal bilaterally. Straight leg testing was positive, however, the examiner reported no signs or symptoms due to radiculopathy. In October 2020, to more specifically address the symptoms of radiculopathy, the Veteran was afforded a peripheral nerves examination. There, the examiner reported that there was mild intermittent pain of the right and left lower extremities. The examiner found no evidence of numbness or of paresthesias and/or dysesthesias. Muscle strength testing, reflex examination, and sensory examination were all normal. The examiner concluded that the Veteran’s symptoms indicated mild incomplete paralysis of the sciatic nerve bilaterally. Based on the foregoing, the Board finds that a 10 percent rating, but no higher, is warranted from March 30, 2015, the first date on which there is evidence of the Veteran’s radiculopathy symptoms in the record. Given that the Veteran has since been diagnosed with radiculopathy of the bilateral lower extremities, the Board resolves all reasonable doubt in the Veteran’s favor to find that his complaint of a burning sensation in the knees and legs was evidence of the onset of the condition at that time. There is further evidence of radicular symptoms in the July 2016 VA examination and in the Veteran’s March 2017 VA treatment. However, there is no evidence that the Veteran’s symptoms from that time are of greater than mild severity. Indeed, the Veteran underwent several spine evaluations during that period during which there was no discussion of radiating pain. The Veteran’s symptoms on examination were found to be subjective only, and the most recent examination, specifically addressing peripheral nerves, found the sciatic nerve condition to be mild on both the left and right sides. There is no other evidence to suggest that the Veteran experienced more severe symptoms of radiculopathy. The Board also observes that there is no evidence to indicate the involvement of a different nerve group of the lower extremities that would warrant entitlement to a separate evaluation under a different diagnostic code. Thus, in light of this evidence, the Board finds that ratings of 10 percent for radiculopathy of the left and right lower extremity are warranted from March 30, 2015. The preponderance of the evidence is against findings that radiculopathy symptoms existed prior to that date, or that radiculopathy exceeded a severity of mild symptoms. Therefore, the “benefit of the doubt” rule is not applicable; entitlement to compensation prior to March 30, 2015, and a rating in excess of 10 percent thereafter, must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.