Citation Nr: 21027499 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-17 199 DATE: May 5, 2021 ORDER An initial 50 percent rating for right upper extremity cervical radiculopathy is granted, subject to the regulations governing payment of monetary awards. REMANDED Entitlement to an initial rating in excess of 50 percent for right upper extremity cervical radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's right upper extremity cervical radiculopathy has resulted in severe incomplete paralysis of the lower radicular group. CONCLUSION OF LAW The criteria for an initial 50 percent rating, but no higher, for right upper extremity cervical radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to August 1974 and from August 1989 to June 2011. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2018 when they were remanded for further development. A Board hearing was held before the undersigned in January 2021. A transcript of the hearing is of record. Lastly, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. An initial 50 percent rating, but no higher, for right upper extremity cervical radiculopathy is granted. The Veteran contends he is entitled to an initial rating in excess of 40 percent for his service-connected right upper extremity cervical radiculopathy. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is right-handed, so his right upper extremity is considered the major upper extremity. 38 C.F.R. § 4.69. Under Diagnostic Code 8512, a 40 percent rating is appropriate when there is moderate incomplete paralysis of the major extremity. A 50 percent rating is appropriate when there is severe incomplete paralysis of the major extremity. When there is complete paralysis of the lower radicular group, involving all intrinsic muscles of the hand, and some or all flexors of the wrist and fingers, wherein the paralysis results in the substantial loss of use of the extremity, a 70 percent rating is warranted for the major extremity. 38 C.F.R. § 4.124a, DC 8512. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type for complete paralysis, 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. See 38 C.F.R. § 4.124a. 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence in this case, a May 2013 private report from Dr. R.M. provides details regarding the history and progression of the Veteran's condition. The report notes that the Veteran underwent surgery in June 2006 to have a posterior cervical laminotomy and foraminotomy and, immediately after the surgery, complained of increased tingling and numbness in the fourth and fifth digits of the right hand; pain that radiated from his neck into his right arm and thumb, index, and middle fingers; some dysphagia; and discoloration. He informed the surgeon and was told the nerve was probably irritated from the surgery and that symptoms would resolve. However, the symptoms did not resolve so, in November 2006, the Veteran underwent another surgery for an anterior cervical fusion and plating (which he reports also did not resolve his symptoms, including constant pain in the posterior cervical region with the scar tissue being a trigger point that causes radiating pain in his right arm and numbness in his thumb, index, and middle fingers when pressure is applied). The report reflects that the Veteran reported experiencing swelling and discoloration of the right hand and fingers, radiating pain, redness, and tingling and numbness of the first three digits with any type of right upper extremity activity or repetitive motion. Dr. R.M. noted that a physical evaluation revealed those fingers were swollen and cool to the touch. He also noted that he examined the back of the Veteran's neck and discovered a muscular knot under an incision scar. He noted that massaging the knot caused pain in the Veteran's neck, his fingers to swell and redden, and increased tingling and numbness of his fingers. Upon questioning, the Veteran reported that activities that increased his pain and/or caused the muscles in his arm to cramp included those that strained his neck muscles (i.e., lifting), tensed his neck (i.e., stress and airplane travel), and irritated the muscles (i.e., repetitive actions, such as golfing and typing). Thoracic outlet and carpal tunnel syndrome were eliminated as mitigating causes. Dr. R.M. noted that the Veteran's treatment consisted of muscular site steroid injections and epidural injections. He also noted that the Veteran has taken muscle relaxers, medication for the mental effects of chronic pain, Hydrocodone for pain, and a sleep medication. In a June 2013 private report provided by Dr. C.L., it was noted that the Veteran was taking medication for his condition and had previously tried physical therapy, steroid injections, and a nerve membrane stabilizer. Physical examination of the Veteran revealed a well-healed anterior cervical transverse incision in the right anterior cervical triangle and a well-healed C6 to about T2 midline posterior neck incision with a scar nodule, which the Veteran reported causes paresthesias and numbness down the right arm when pressure is applied. Motor examination revealed significant pain and weakness. Dr. C.L. noted that the Veteran reported symptoms, including coolness of the swollen fingers, and decreased sensory sensation light touch to digits (especially digits 1, 2, and 3). He also noted that it is possible the Veteran has neuropathy due to scar irritation of the operation on the nerves. He indicated his belief that the Veteran suffered chronic neuropathic damage of the right cervical nerve roots most specifically C5-C6 and C7. He reported that the Veteran's symptoms, including discoloration and hypesthesia of the fingers are related to the original surgeries and that he was left with permanent nerve damage as a result of the surgeries. In a July 2013 Notice of Disagreement, the Veteran reported living with constant pain in his neck and arm. He reported that his fingers feel as if he had been stung by a wasp when they are in their swollen state. He reported difficulties with flying in airplanes and performing activities, such as mowing the lawn, because his neck muscles will tighten and cause neck, arm, and hand pain. In a July 2013 statement, the Veteran reported that his thumb, forefinger, and middle finger were swollen and tingling and that he was experiencing cramps in his forearm. An April 2015 VA treatment record reflects that the Veteran reported most problems were in his first three fingers on his right hand. He reported increased pain and swelling with use of his hand. He also reported that irritation at the posterior neck where the nerve was crimped at surgery causes tingling and decreased sensations and that he sometimes feels like he has stings on his hand. He also reported getting muscle cramps in his upper and forearm muscles after using his right arm. In a January 2016 VA Form 9, the Veteran reported daily pain, muscle cramps in his lower arm, and swelling in his fingers. The Veteran's wife also provided a statement in January 2016. In the statement, she reported that anything that pulls or tightens the Veteran's neck muscles aggravates the pain in his hand and, when aggravated, two digits will swell and throb. She also stated that the Veteran has told her several times that it sometimes feels like a swarm of wasps stinging his thumb and forefinger. She indicated that the Veteran's symptoms are not only triggered by physical activity and can sometimes be a result of stress. She also reported that the Veteran has difficulties flying on airplanes, noting that his neck muscles involuntarily tighten to keep his head from bouncing around and puts pressure on his nerve and causes his hand to swell. She added that the vibrations of even a 45-minute flight are enough to keep him in bed for a day. She indicated that flying was part of the Veteran's job and that he had to leave the job due to his symptoms. In January 2016, the Veteran's neighbor, J.W., also submitted a statement in which he reported doing yard work and other physical tasks for the Veteran because the Veteran's damaged arm and hand prevented him from being able to complete those tasks himself. He also stated that he has not seen the Veteran without a swollen hand and that the Veteran constantly tries to stretch his neck to relieve some stress on it. He also reported that he has seen the Veteran's thumb and forefinger swollen and red. In November 2018, the Veteran underwent a VA examination. The examiner noted that the Veteran's dominant hand was his right. Additionally, regarding the Veteran's radiculopathy, the examiner noted that the Veteran experienced mild constant pain, moderate intermittent pain, moderate paresthesias and or dysesthesias, and moderate numbness. The examiner indicated that the overall severity of the Veteran's right upper extremity radiculopathy was moderate. In January 2021, the Veteran testified at a Board hearing. During the hearing, the Veteran reported experiencing pain in his hands and arms, a tingling and cold sensation in his fingers, and swelling and fatigue in his arm. He indicated that he does not have feeling in his hands, noting that he has dropped dishes on occasion. He also reported that he cannot participate in sports or work because of his condition. He noted that he does not have feeling in his right hand and cannot use his thumb, forefinger, and middle finger. After a review of the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board concludes that an initial 50 percent rating for the Veteran's service-connected right upper extremity cervical radiculopathy is warranted for the entire period on appeal. Despite the March 2018 VA examiner's characterization of moderate incomplete paralysis, the Board finds the Veteran's testimony at the January 2021 Board hearing and other statements of record reflects symptomatology reflective of severe incomplete paralysis. Specifically, the Veteran testified that he cannot use his first three fingers and also indicated that he does not have feeling in his right hand, which affects his ability to complete certain tasks, including typing and bowling; causes him to drop items; and prevents him from participating in various activities, including sports. In addition, he reported experiencing pain, swelling, and fatigue in his arm and hand and a cold and tingling sensation in his fingers. The Board finds such symptoms at least approximate the criteria for a 50 percent rating for his right upper extremity cervical radiculopathy. In conclusion, the Board finds an initial 50 percent rating is warranted for the Veteran's service-connected right upper extremity cervical radiculopathy. The issue of whether a rating in excess of 50 percent is warranted is addressed as a separate issue in the remand section below. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 50 percent for right upper extremity cervical radiculopathy is remanded. The Board finds remand is required as the record is unclear as to whether the Veteran's service-connected right upper extremity cervical radiculopathy has resulted in complete paralysis. During the January 2021 Board hearing, the Veteran testified that the VA nerve conduction studies he previously underwent did not adequately test and would not adequately show the severity of his condition, noting specifically that the studies do not test above and below the neck incision as that is the trigger point for his symptoms. Thus, the Board finds remand for completion of the testing specified by the Veteran is warranted. 2. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine is remanded. The Board finds remand is required as there has not been substantial compliance with the September 2018 Board remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the Agency of Original Jurisdiction (AOJ) has not substantially complied with the remand orders, the Board itself errs in failing to ensure substantial compliance. Id. In the September 2018 Board remand, the Board directed the AOJ to schedule the Veteran for a VA examination to ascertain the severity of his cervical spine disability. The Board indicated that if the Veteran reported experiencing flare-ups and the examination was not being conducted during a flare-up, the functional impact of a flare-up should have been estimated in terms of degrees of range of motion. If an estimation in degrees of range of motion could not be provided, the examiner was asked to provide an explanation as to why that is so. In November 2018, the Veteran underwent a VA examination. During the examination, the Veteran reported experiencing flare-ups about seven to eight times per month. The examiner indicated that the examination was not being conducted during a flare-up and that pain and lack of endurance significantly limited functional ability during a flare-up. However, the examiner did not estimate the functional impact of a flare-up in terms of degrees of range of motion and did not adequately explain why an estimation could not be provided. Thus, the Board finds remand is required to ensure substantial compliance with the above prior remand directives. Stegall, 11 Vet. App. 271. 3. Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, during the January 2021 Board hearing, the Veteran reported that he could not find a job due to his service-connected cervical spine disability and right upper extremity cervical radiculopathy. Thus, the issue of TDIU has been raised in the context of this appeal. However, the claim has not yet been adjudicated by the AOJ. Therefore, a remand is required to allow the AOJ to consider the merits of the claim in the first instance. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the severity of his service-connected right upper extremity cervical radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should specifically complete a nerve conduction test that tests the area near the Veteran's neck incision. If this cannot be done, the examiner should fully explain why that is so. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.