Citation Nr: 21028521 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-04 149 DATE: May 11, 2021 ORDER Entitlement to an increased evaluation in excess of 20 percent from June 1, 2010 to December 7, 2020 for right upper extremity radiculopathy is denied. Entitlement to an increased evaluation in excess of 40 percent from December 7, 2020 for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. For the period from June 1, 2010 to December 7, 2020, the service-connected right upper extremity radiculopathy is shown to be productive of mild incomplete paralysis. Moderate incomplete paralysis has not been shown. 2. For the period from December 7, 2020 forward, the service-connected right upper extremity radiculopathy is shown to be productive of moderate incomplete paralysis. Severe incomplete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 20 percent for the service-connected right upper extremity radiculopathy for the period from June 1, 2010 to December 7, 2020 have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8510 (2020). 2. The criteria for the assignment of a rating in excess of 40 percent for the service-connected right upper extremity radiculopathy for the period from December 7, 2020 forward have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1981 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is associated with the record. The Board remanded the issues on appeal for additional development in February 2020. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the RO granted an increased rating for the Veteran's right upper extremity radiculopathy in a January 2021 rating decision, effective from December 7, 2020. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. This appeal was originally certified to the Board with an additional issue: entitlement to service connection for a respiratory disability. However, in a January 2021 rating decision, the RO granted entitlement to service connection for a respiratory disability, diagnosed and rated as asthma, with a 30 percent rating effective from June 1, 2010. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran has a separate claim for TDIU already in progress and not yet adjudicated by the RO. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. § 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to 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. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 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. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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. 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. Right Upper Extremity Radiculopathy: Legal Standards The Veteran is service connected for his right upper extremity radiculopathy and stated in his original claim for the increased rating that it has worsened since his last VA examination of June 2013. In addition, the Veteran has submitted other non-VA treatment records related to his right shoulder radiculopathy and also a statement from a private orthopedist regarding the current state of his radiculopathy disability to show worsening since last evaluated by VA. The Veteran also testified before the undersigned Veterans Law Judge in December 2019 as to the current symptoms of his right shoulder radiculopathy and its effects on his daily life. As discussed above, the Board has added to the appeal the Veteran's service-connected right upper extremity radiculopathy, associated with the cervical spine degenerative disc disease, which is not on appeal. The right, or dominant, upper extremity is rated at 20 percent from June 1, 2020 to December 7, 2020, and 40 percent from December 7, 2020 forward. The Veteran's left, or non-dominant, upper extremity has never been claimed, and no VA examiner has ever found disability with that upper left extremity. Therefore, it will not be discussed here. Radiculopathy of the right upper extremity has been assigned disability ratings under 38 C.F.R. § 4.124a, Diagnostic Code 8510 for the earlier stage and under Diagnostic Code 8513 for the latter stage. Diagnostic Code 8510 provides the rating criteria for paralysis of the upper radicular group (fifth and sixth cervicals). Diagnostic Code 8513 provides the rating criteria for paralysis of all radicular groups. The terms "major" and "minor" are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. The VA examination reports indicates that the Veteran is right-handed. Therefore, his right upper extremity is evaluated as major or dominant, and his left upper extremity is evaluated as minor or non-dominant. Under Diagnostic Code 8510, which provides the rating criteria for paralysis of the upper radicular group (fifth and sixth cervicals) relevant to evaluating a veteran's major (dominant) extremity, a 20 percent rating is assigned for mild incomplete paralysis of the upper radicular group, a 40 percent rating is assigned for moderate incomplete paralysis of the upper radicular group, a 50 percent rating is assigned for severe incomplete paralysis of the upper radicular group, and a 70 percent rating is assigned for complete paralysis of the upper radicular group (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected). Under Diagnostic Code 8513, which provides the rating criteria for paralysis of all radicular groups relevant to evaluating a veteran's major (dominant) extremity, a 20 percent rating is assigned for mild incomplete paralysis, a 40 percent rating is assigned for moderate incomplete paralysis, a 70 percent rating is assigned for severe incomplete paralysis, and a 90 percent rating is assigned for complete paralysis. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Note preceding Diagnostic Code 8510. When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree. Id. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. All the medical evidence was to be evaluated to determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etc. Evidence and Analysis Right Upper Extremity Radiculopathy The Veteran originally filed a claim for an increased rating for a service-connected cervical spine disability on June 1, 2010, and in addition to symptomatology for his neck and shoulder, complained of shooting pains in his right arm and hand. Based on the medical evidence at the time, the RO added a separate rating for right upper extremity radiculopathy under Diagnostic Code 8510 with a 20 percent rating effective from the date of claim of the related cervical spine rating. The cervical spine disability is itself not on appeal here, and nor is a service connected right shoulder disability. In January 2021, the RO increased the right upper extremity radiculopathy to 40 percent, effective from the date of the VA examination of December 7, 2020 that found the symptoms that more closely approximate the 40 percent rating. Private medical records submitted by the Veteran as part of his June 2010 claim show a neurologist noting acute denervation in muscles sharing C-7 and C-8, and chronic neurogenic changes in all right upper limb muscles. The neurologist considered the nerve changes to be due to nerve compression in the upper cervical vertebrae. Other private medical records from February 2010, May 2010, and August 2012 indicate consistent mild pain and weakness in the right shoulder due to nerve damage from the cervical spine. Treatment included weightlifting exercises, mild analgesics, and hot and cold compresses of the right shoulder area as required. The first VA examination pertinent to this appeal was provided in June 2013. The examiner found right upper extremity radiculopathy, characterized as mild, as due to service-connected cervical strain with multilevel degenerative disc disease. The Veteran submitted a medical opinion in July 2013 from his private physician regarding his right upper extremity radiculopathy. This examiner noted considerable atrophy in the right shoulder girdle and proximal upper extremity muscles, and that the Veteran could not generate normal strength in his right arm. This examiner also stated the Veteran's radiculopathy was more severe than that evaluated by the June 2013 VA examiner. The Veteran noted in a lay statement, also in July 2013 that his right upper extremity radiculopathy impacts his quality of life, to include problems driving, looking over his right shoulder, dressing over his upper body, and sleeping. The Veteran received a VA peripheral nerves examination in December 2020. This examiner noted moderate levels of radiculopathy in the right upper extremity, and no radiculopathy in any other extremity. Constant pain, intermittent pain, usually dull, paresthesias and/or dysesthesias, and numbness were all noted at moderate levels in the right upper extremity. The examiner noted that the nerve roots of the upper, middle, and lower radicular groups were all involved. Muscles strength in all right upper extremity areas was four on a scale of five, and muscle atrophy was noted in the mid-upper arm in the right biceps. Hypoactive reflexes were noted in the right biceps, triceps, and brachioradial, as well as the general right shoulder area. The examiner characterized moderate incomplete paralysis in the radial nerve, median nerve, and ulnar nerve areas. The examiner noted functional impacts of the right upper extremity radiculopathy as affecting the Veteran's ability to lift objects with the right arm. 1. Entitlement to an increased evaluation in excess of 20 percent from June 1, 2010 to December 7, 2020 for right upper extremity radiculopathy For the Veteran's right upper extremity radiculopathy, the Board finds that for the period from June 1, 2010 to December 7, 2020 that a rating of 20 percent, but no higher, is warranted. The June 2013 VA medical examiner described intermittent bilateral upper extremity mild pain, paresthesias, dysesthesias, and numbness, characterizing the radiculopathy as "mild." Pursuant to Diagnostic Code 8510, mild, incomplete paralysis of the upper radicular group is to be rated at 20 percent for each the major and the minor extremity. A higher rating of 40 percent for the major extremity or 30 percent for the minor extremity is not warranted unless there is moderate incomplete paralysis shown of the upper radicular group. 2. Entitlement to an increased evaluation in excess of 40 percent from December 7, 2020 for right upper extremity radiculopathy For the period after December 7, 2020, for the right upper extremity, the Board finds that a rating of 40 percent, but no higher, is warranted for the Veteran's radiculopathy. The right upper extremity is the Veteran's dominant arm and is rated under the "major" category for Diagnostic Code 8513, which prescribes a 40 percent rating for moderate incomplete paralysis. The Board notes the VA examiner for the December 2020 examination noted moderate degrees of radiculopathy for the right upper extremity, with constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness characterized as "moderate." Therefore, the Board finds that for the rating period after December 7, 2020, the Veteran's symptomatology associated with his service-connected right upper extremity cervical radiculopathy more nearly approximates a 40 percent rating for the right or major upper extremity. The Board notes here that the January 2021 rating decision characterized the right upper extremity radiculopathy under Diagnostic Code 8513 for all radicular groups, vice the Diagnostic Code 8510 used in the earlier staged rating, but also notes that each diagnostic code returns the same rating in the same period due to the symptomatology of the disability and the language of the pertinent diagnostic code. A higher rating of 50 percent for the major extremity or 40 percent for the minor extremity is not warranted unless the incomplete paralysis of the upper radicular group is characterized as "severe." No medical examiner made a finding of radiculopathy characterized as "severe" in any examination in the Veteran's medical records. To the extent that the Veteran reports that his right upper extremity radiculopathy is worse than evaluated, the Board has considered his statements. This evidence is both competent and credible in regard to reporting worsening. However, far more probative of the degree of the disability are the results of range of motion testing and examination reports prepared by skilled examiners to indicate the nature and severity of his right upper extremity disability. The Board also notes the Veteran's statements and that of private medical records submitted with this claim discuss the Veteran's cervical spine disability or his right shoulder disability, each of which are service-connected but neither of which are on appeal. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 20 percent for right upper extremity radiculopathy prior to December 7, 2020, or in excess of 40 percent from December 7, 2020 forward for the right upper extremity. See 38 C.F.R. § 4.71(a), Diagnostic Codes 8510 and 8513; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's cervical spine disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.