Citation Nr: 21029113 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-38 898 DATE: May 12, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for right shoulder degenerative joint disease prior to March 18, 2016, and in excess of 40 percent, thereafter, is denied. Entitlement to a disability rating in excess of 20 percent for right upper extremity radiculopathy prior to October 10, 2018, and excess of 40 percent from October 10, 2018 to December 15, 2019, is denied. Entitlement to a disability rating of 50 percent, but no higher, for a right upper extremity radiculopathy from December 16, 2019, is granted. FINDINGS OF FACT 1. Prior to March 18, 2016, the Veteran's right shoulder is manifested by pain, pain on motion, weakness, and lack of endurance. The right shoulder disability is most closely approximated by limitation of motion of the arm midway between the side and shoulder level. 2. From March 19, 2016, the Veteran's right shoulder is manifested by weakness, and lack of endurance. The right shoulder disability is most closely approximated by limitation of motion being limited to less than 25 degrees from the side and was manifested with painful limited motion without ankylosis or impairment of the humerus. 3. Prior to October 10, 2018 the Veteran's right upper extremity has no more than mild symptoms of incomplete paralysis. 4. From October 11, 2018 to December 15, 2019 the Veteran's right upper extremity has no more than moderate symptoms of incomplete paralysis. 5. From December 16, 2019 the Veteran's right upper extremity disability is manifest by severe symptoms and sensory findings of the shoulder, forearm, pain, and numbness. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for right shoulder degenerative joint disease prior to March 18, 2016 and in excess of 40 percent thereafter have not been met. 38U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a disability rating in excess of 20 percent for right upper extremity radiculopathy prior to January 26, 2017 and excess of 40 percent from October 10, 2018 to December 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 3. Entitlement to a disability rating of 50 percent, but no higher, for a right upper extremity radiculopathy from December 16, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the U.S. Navy from November 1973 to November 1977 and from October 2002 to January 2004. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In November 2019, the Board granted increased disability ratings of 30 percent for right shoulder degenerative joint disease prior to March 18, 2016 and of 40 percent since but denied ratings in excess thereof. The Veteran filed an appeal to the Court of Appeals of Veterans Claims (the Court) contesting the Board's November 2019 decision to the extent it denied yet higher ratings. In September 2020, on the basis of a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's decision for further consideration. The matter is now before the Board again for further appellate review. September 2012 Correspondence the Court first directed the Board to further explain why a September 2012 communication was treated as a new claim for increased rating rather than as a notice of disagreement (NOD) with a January 2012 rating decision which had continued a 20 percent rating for the right shoulder. On the September 2012 VA Form 21-526b,Veteran's Supplemental Claim for Compensation, the Veteran checked the top box on the form to provide information about the claim: "INCREASED EVALUATION OF THE DISABILITIES FOR WHICH I AM ALREADY SERVICE CONNECTED" (Emphasis in original). He then specified his spinal disability currently rated 20 percent disabling and his limited motion of the right arm currently rated 20 percent. Based on the plain language of the form and the checked box, the RO and the Board concluded that the Veteran desired an increased rating. He did not, either on the form or in any accompanying documents, indicate he disagreed with the currently assigned evaluation. An expression of disagreement is necessary for an NOD; while there were, at the time of the filing no special words required or specific form to file, the communication still had to manifest language which could be reasonably construed as disagreement and as seeking appellate review. 38 C.F.R. § 20.201 (2012). The filing, on its face, specifies that an increased rating was sought. While it refers to the current rating, it does not refer to any prior decision in the case and does not mention appellate review at all. Moreover, when read in conjunction with evidence and information filed in support of the claim for increase, the characterization of the communication as an indicator of worsening and not disagreement, the Veteran's intent in clarified even further. VA treatment records from the VA medical center in Tuscaloosa, referenced by the Veteran in support of his claim for increase, show that he was treated in August 2011 about his chronic right shoulder pain and limitations imposed by it. This record was considered in the January 2012 rating decision. The next substantive reference to the right shoulder comes in October 2012, after the filing of the increased rating claim, wherein the Veteran complains of "having progressively worse trouble with right shoulder pain...." In other the Veteran claimed worsening and began seeking treatment for new or advancing symptomatology and did not discuss retroactive status. In April 2013, the Veteran filed a statement in support of the claim from increased rating. He stated, "I have not been where I can say I have had a pain free day at all, and it has increased tremendously in [the] past year." (Emphasis added). Such places the increase after the January 2012 decision, though it fails to establish a definite date of worsening. Accordingly, the Veteran did not express disagreement and a desire for appellate review of the January 2012 RO decision for his right shoulder disability. The Board finds that the Veteran's September 2012 VA Form 21-526b was not a valid NOD for the January 2012 RO decision, and was, consistent with his communication and treatment in the days and months around the filing, a new claim for a recently worsened condition. Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002); 38 C.F.R. § 20.201 (2014). Increased Rating Second, the Court found the Board had failed to adequately discuss whether the actual degree of functional impairment due to pain warranted a higher evaluation, to include consideration of whether such was the equivalent of ankylosis of the joint. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's right shoulder condition is evaluated under Diagnostic Code (Code) 5201. A distinction is made between major (dominant) and minor musculoskeletal groups. The Veteran is right-handed; hence, his right shoulder is considered his major upper extremity, and his left shoulder is considered his minor upper extremity. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. 38C.F.R. §4.71, Plate I. A 20 percent evaluations contemplate motion of the major arm limited to shoulder level. A 30 percent rating is assignable for motion of the major arm limited to midway between side and shoulder level. A maximum 40 percent rating is assignable for the major upper extremity, when motion is limited to within 25 degrees from side. 38C.F.R. §4.71a, Diagnostic Code 5201. Diagnostic Code 5200, ankylosis of the scapulohumeral articulation is when the scapula and humerus move as one piece. For the major arm, favorable ankylosis, with abduction to 60 degrees (the ability to reach the mouth and head) is rated at 30 percent; intermediate, between favorable and unfavorable, ankylosis is rated at 40 percent; and unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side warrants a 50 percent rating. Ankylosis is defined as complete immobility of a joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5202, for other impairment of the humerus for the major arm, malunion of moderate deformity warrants a 20 percent rating, recurrent dislocation with infrequent episodes and guarding of movement only at the shoulder level is rated at 20 percent; and fibrous union of the humerus is rated at 50 percent; nonunion of the humerus is rated 60 percent; and a loss of the humerus head is rated at 80 percent. In December 2011, the Veteran was afforded a VA examination. The Veteran was diagnosed with degenerative arthrosis of the shoulder. He reported that he had chronic pain. He was not able to lift, push, or pull things because of his shoulder. He indicated that the pain in his shoulder interrupted his sleep. The Veteran indicated that if he shot a weapon more than once he had increased shoulder pain for weeks. Initial range of motion (ROM) showed flexion to 145 degrees, with evidence of pain at 140 degrees and an abduction to 120 degrees with evidence of pain. The Veteran had functional loss/impairment described as pain on movement. He had localized tenderness or pain on palpation of joints/soft tissue/biceps tendon of either shoulder. He had a normal muscle strength testing. He had a positive lift-off subscapularis test and cross-body adduction test. The examiner opined that the Veteran's right shoulder disability impacted his ability to work. He explained that his shoulder impaired his ability to handle and fire weapons; the Veteran was a prison Warden. In April 2013, the Veteran was afforded a VA examination. The Veteran was diagnosed with right shoulder slap tear and arthritis. The Veteran reported that he had daily right shoulder pain. He indicated that he had constant pain at a moderate severity. He noted that his shoulder was worse with overuse or repetitive actions. He indicated that his shoulder was better with rest, avoidance of activities, and medication. His ROM for flexion was to 140 degrees with evidence of pain at zero degrees and abduction was to 70 degrees with evidence of pain at zero degrees. He had functional loss described as less movement than normal, weakened movement, excess fatigability, and pain on movement. He had localized tenderness or pain on palpation of joints/soft tissue/biceps tendon of either shoulder. His muscle strength testing was normal. He did not have ankylosis. His Hawkins impingement test, External rotation/Infraspinatus strength test, Lift-off subscapularis test, Cross-body adduction test and empty-can test were negative. The examiner opined that the Veteran's shoulder condition impacted his ability to work. He explained that the Veteran had increased symptoms with duties of a physical nature. A March 2016 treatment note documented that the Veteran's ROM for the right arm was to 100 degrees on flexion, to 100 degrees on abduction, to 60 degrees on external rotation, and to 10 degrees on internal rotation. In January 2017, the Veteran was afforded a VA examination. The Veteran reported that he had pain and stiffness in his shoulder. He treated his condition with Tramadol and Robaxin. He noted that the previous week before the examination he had a steroid injection in his shoulder due to increased pain. He indicated that he had a stabbing pain when he tried to raise his arm. He reported that he was awakened from his sleep because of pain and was not able to move his arm. ROM for flexion was to 90 degrees, abduction was to 90 degrees, external rotation was to 90 degrees, and internal rotation was to 90 degrees. He had pain on flexion, abduction, external rotation, and internal rotation. The examiner was not able to say whether pain weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The examiner explained that the Veteran was not examined after repetitive use over time so to describe in terms of ROM would be mere speculation. The Veteran had an abnormal muscle strength testing. He did not have muscle atrophy or ankylosis. The VA examiner opined that the Veteran's right shoulder impacted his ability to work. He explained that his shoulder condition prevented him from pulling, pushing, and lifting. In October 2018, the Veteran was afforded a VA examination. The Veteran reported that he was not able to reach over his head. He indicated that he was not able to use his arm repeatedly. ROM was 130 degrees for flexion, 110 degrees for abduction, 60 degrees for external rotation, and 45 degrees for internal rotation. The Veteran had pain on flexion, abduction, external rotation, and internal rotation. The Veteran had anterior tenderness to his shoulder. The Veteran had pain and lack of endurance in his shoulder. The examiner indicated that his ROM in terms of functional loss was 90 degrees for flexion, 90 degrees for abduction, 30 degrees, for external rotation, and 20 degrees for internal rotation. He had an abnormal muscle strength testing. He did not have ankylosis. He had a positive Hawkins impingement test, Empty-can test, external rotation/ Infraspinatus strength test, and Lift-off Subscapularis test. The examiner opined that the Veteran's shoulder condition impacted his ability to perform any type of occupational task. She explained that the Veteran was not able to lift his right arm or reach overhead. A February 2019 VA treatment note documented that the Veteran was treated for his right shoulder. He reported that he had a decreased pain from 7/10 to 6/10. The examiner noted that active ROM shoulder flexion decreased from 125 degrees to 76 degrees, shoulder abduction did not change from 75 degrees, shoulder extension improved from 35 degrees to 40 degrees, external rotation improved from 65 degrees to 80 degrees, internal rotation decreased from 65 degrees to 50 degrees, and elbow extension did no change from 15 degrees. In February 2019, the Veteran testified that he took Ibuprofen, Ultram, and Tramadol for his condition. He also indicated that he received shots in his shoulder for his pain. He indicated that he was not able to carry things or rake leaves. He indicated that 90 percent of his days were bad days for his shoulder condition. He stated that he found himself doing things with his left arm/hand that he would normally do with his right arm/hand. During the hearing it was noticeable that the Veteran was barely able to move his right shoulder. He indicated that when he was moving his arm his elbow would never leave his body due to pain. A February 2019 VA treatment note documented that the Veteran was unable to perform a ROM assessment due to pain. A February 2019 private treatment note documented that the Veteran was seen for his shoulder. The examiner noted that his active ROM shoulder flexion improved from 76 degrees to 117 degrees, shoulder abduction improved from 75 degrees to 90 degrees, shoulder extension decreased from 40 degrees to 35 degrees, external rotation improved from 80 degrees to 90 degrees, and internal rotation improved from 50 degrees to 60 degrees. A July 2019 VA treatment note documented that the Veteran was seen for his right shoulder pain. The Veteran reported that he was not able to wash under his right arm. He stated that he had to use his left arm to help raise his right arm when showering. The examiner noted that the Veteran had pain with restricted abduction/external rotation of the right shoulder. An April 2020 VA treatment record documented that the Veteran complained of right shoulder pain. He rated his pain an 8/10. He reported that his pain improved some but overall, he continued to have problems. Prior to March 18, 2016 As noted in the introduction, in September 2020, the Court vacated and remanded part of the Board's November 2019 decision. The Court found the Board failed to support its decision with an adequate statement or reasons or bases. The Court found that the Board did not adequately consider the severity of the Veteran's pain. The Board did not address whether his resulting impairment amounted to functional ankylosis or merited an increased rating as a result. Furthermore, the Board did not consider that the Veteran's pain started at zero degrees. The Board did not consider that his shoulder was extremely painful, and that, in order to shake hands, he had to lean his entire body forward instead of extending his arm, and that his elbow never left his side. Additionally, the Board did not consider that the Veteran did not use his right arm at all because it was too painful and it was too painful, and that he had "bad days" 90 percent of the time. Accordingly, the Court remanded this matter for the Board to adequately support its findings as to whether the Veteran's lay statements showed a functional impairment that nearly approximates ankylosis. The Board finds that the Veteran's lay statements does not show a functional impairment that nearly approximates ankylosis. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 30 percent is not warranted. The record demonstrated that the Veteran's limitations due to pain and weakness more closely approximate those associated with limitation of motion to midway between the side and shoulder level. Although at most a 70-degree limitation of abduction was noted, which was greater than midway between the side and shoulder level, examiners found weakened movement, excess fatigability, and pain on movement. There have been no complaints or findings of fibrous union, nonunion, or loss of head of the humerus in order to warrant a rating in excess of 30 percent for the Veteran's shoulder under Diagnostic Code 5202. Diagnostic Codes 5201 and 5203, pertaining to limitation of motion of the arm and impairment of the clavicle or scapula, do not provide for ratings in excess of 30 percent. In addition, there is no evidence of unfavorable ankylosis so as to warrant a higher rating under Diagnostic Code 5200, as the evidence reflects movement of the right shoulder. His right shoulder has not had ankylosis, nor functional impairment that nearly approximates ankylosis. The Veteran was able still to move his right shoulder and arm, although limited by pain. Even with consideration of functional factors, the Board finds that the Veteran's right shoulder disability does not meet or approximate the criteria for a disability evaluation in excess of 30 percent. In sum, the evidence does not show that a rating in excess of 30 percent is warranted. As the preponderance of the evidence is against the claim for higher rating for a right shoulder disability, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. Since March 18, 2016 Based on the lay and medical evidence of record, the Board finds that the weight of the evidence is against the assignment of a disability rating in excess of 40 percent. As the Veteran is already in receipt of the maximum possible rating based on limitation of motion, a higher evaluation is not possible under Code 5201. The Board has considered whether a higher rating is warranted under the other criteria pertaining to the shoulder. Under Code 5200, a 50 percent evaluation is assigned for unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees from the side of the major arm. Code 5202 provides for higher ratings based on impairment of the humerus, with a 50 percent disability rating assigned for a fibrous union, a 60 percent disability rating warranted with nonunion of the humerus (false flail joint), and an 80 percent disability rating for loss of head of the humerus (flail shoulder) of the major arm. 38 C.F.R. § 4.71a. The Board finds that higher evaluations are not warranted under these other diagnostic codes as the Veteran's right shoulder has not manifested impairment of the humerus or shoulder ankylosis. The Board notes that the Veteran has pain at zero degrees, and he reported that his shoulder is extremely painful. He testified that his elbow never left his side. He indicated that he frequently did not use his right arm at all, because it was too painful, and that he had "bad days" 90 percent of the time. However, as noted in VA treatment notes and VA examination reports specifically noted the absence of ankylosis. Moreover, the VA treatment records, and VA examination reports indicated that the Veteran was able to move his arm. Specifically, the February 2019 private treatment note showed ROM improvements. An April 2020 VA treatment note documented that he reported improvement in pain. The Board finds that his right shoulder has not had ankylosis nor functional impairment that nearly approximates ankylosis. Based upon the above evidence, the Board finds that the evidence is against the finding of a disability rating in excess of 40 percent for the Veteran's right shoulder disability. The Veteran is in receipt of the maximum disability rating provided for by Code 5201. As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for the right shoulder, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The record does not show that the Veteran's right shoulder disability demonstrates symptoms that are not contemplated by the schedular criteria or that the severity of his right shoulder is not contemplated by the schedular criteria. Here, symptoms include pain and limitation of motion, all contemplated by the schedular rating criteria. For the foregoing reasons, the preponderance of the evidence is against entitlement to a higher rating for the Veteran's right shoulder disability and the appeal must be denied. Extraschedular Consideration The Veteran has argued that his complaints of sleep disturbances, based on interference with sleep due to the shoulder disability, warranted compensation. The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran reports that his sleep is disturbed because of pain related to his right shoulder disability. None of the schedular criteria for the arm and shoulder specifically address sleep disturbance. However, there is no probative evidence that any sleep problems related to the Veteran's right shoulder disability resulted in marked interference with employment or frequent hospitalization. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. Additionally, no separately compensable sleep disorder is noted by the evidence. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Although the Veteran is diagnosed with obstructive sleep apnea (OSA), the evidence of record did not show that his OSA was related to his right shoulder disability, and is a separate disability entity for which service connection must be claimed, not a symptom of the shoulder. Further, the degree of interference with sleep is not shown to rise to a compensable level; no sleep disorder is diagnosed. Right Upper Extremity Upper extremity radiculopathy is evaluated under the general rating formula for diseases of peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Code 8510. An evaluation of 20 percent is assigned for incomplete paralysis of shoulder and elbow movements which is mild. A higher evaluation of 40 percent for the major extremity and 30 percent for the minor extremity is not warranted unless there is incomplete paralysis of shoulder and elbow movements which is moderate. A 50 percent rating for the major extremity and 40 percent rating for the minor extremity is available for incomplete paralysis of the shoulder an elbow which is severe. A 70 percent rating for the major extremity and a 60 percent rating for the minor extremity is warranted for complete paralysis of all shoulder and elbow movements. The Veteran is right-handed, so this is his major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Note Diseases of the Peripheral Nerves. The Board observes that the words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In April 2013, the Veteran was afforded a VA shoulder examination. The Veteran reported that he had some right upper extremity radiculopathy. The Veteran had moderate constant pain in the right upper extremity. He had mild paresthesias and/or dysesthesias and numbness in the right upper extremity. He did not have intermittent pain in his right upper extremity. The Veteran had a mild severity of right upper extremity radiculopathy. In January 2017, the Veteran was afforded a VA peripheral nerve examination. The Veteran reported that he had numbness, tingling, and pain in his right upper extremity. He noted that he treated his condition with Tramadol and Robaxin. He had moderate constant pain, numbness, and paresthesias and/or dysesthesias. He did not have intermittent pain. His muscle strength testing was abnormal in elbow flexion, elbow extension, and grip. His muscle strength testing was normal in wrist flexion, wrist extension, and pinch. His reflex examination was normal. He had an abnormal sensory examination. The examiner noted that that Veteran had a mild severity of the right upper extremity radiculopathy. The examiner opined that the Veteran's condition impacted his ability to work. He explained that his condition prevented him from pulling, pushing, or lifting. In October 2018, the Veteran was afforded a VA shoulder examination. The Veteran had mild constant pain in the right upper extremity. The Veteran had severe intermittent pain in the right upper extremity. The Veteran did not have paresthesia and/or dysesthesias and numbness in the right upper extremity. The Veteran had a moderate severity of right upper extremity radiculopathy. In February 2019, the Veteran testified that his radiculopathy pain was severe. He indicated that he had constant cramping and it felt like his hand did not feel real. A July 2019 VA treatment documented the Veteran's radiculopathy complaints. The Veteran indicated that he had tingling and numbness in his right arm. In September 2019, the Veteran was afforded a VA cervical spine examination. The Veteran had moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right upper extremity. He had severe intermittent pain. The Veteran had a moderate severity of right upper extremity radiculopathy. In December 2019, the Veteran was afforded a VA peripheral nerves examination. The Veteran reported that he had shooting sharp pain in his right arm. He indicated that he had pain intermittently throughout the day. He rated his pain an 8/10. He noted that his pain was shooting down his arm to his 4th and 5th finger. He described his pain as a dull and achy constant pain in his right shoulder and upper arm. His numbness and tingling were intermittent daily. The Veteran reported that he had weakness of the entire right arm and he dropped things. He noted that he could not rack leaves and could not push or pull heavy things over 5 pounds. He indicated that he could not reach or work over his head. The Veteran had moderate constant pain and paresthesia and/or dysesthesia in the right upper extremity. He had severe intermittent pain and numbness in his right upper extremity. He had some active movement against some resistance in his elbow flexion, wrist flexion, wrist, extension, and grip. He had a hyperactive reflex examination. He had decreased sensation to light touch. He did not have any trophic changes. He had a moderate incomplete paralysis in the radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, upper radicular group, and middle radicular group. He had mild incomplete paralysis in the circumflex. The Veteran used a brace regularly for his condition. The examiner opined that the Veteran's condition impacted his ability to work. The examiner noted that his condition affected his ability to lift and carry heavy loads, use tools, work overhead, push and pull, perform repetitive motions with both arms, type and write, and grasp small objects. The examiner indicated that the Veteran should avoid exposure to vibration and extreme temperatures. Prior to October 10, 2018 The Board has reviewed and carefully considered the Veteran's lay statements regarding his right upper extremity. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to right upper extremity radiculopathy disorder as this requires highly specialized knowledge and training. 3 8 C.F.R. § 3.159 (a)(1). Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The evidence in the claims file indicates that the Veteran's right upper extremity radiculopathy most closely approximated mild incomplete paralysis prior to October 10, 2018. The April 2013 VA examination report demonstrated that the Veteran had a mild incomplete paralysis. The Veteran indicated that he had some right upper extremity radiculopathy during the examination. The Veteran had moderate constant pain in the right upper extremity and mild paresthesias and/or dysesthesias and numbness in the right upper extremity. He did not have intermittent pain in his right upper extremity. As such, the Veteran's claim for a disability rating in excess of 20 percent for his right upper extremity prior to October 10, 2018, must be denied. The evidence for this period is against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. From October 10, 2018 to December 16, 2019 The Board has considered assigning the Veteran an increased evaluation under Diagnostic Code 8510 for radiculopathy of the right upper extremity. However, there is simply no evidence of record reflecting that the Veteran's right upper extremity radiculopathy manifested with symptoms that were more than moderate in severity at any point during October 2018 to December 2019. While the Veteran reported severe pain at his Board hearing, the VA examination report noted he had severe intermittent pain in the right upper extremity. However, he did not have paresthesia and/or dysesthesias and numbness in the right upper extremity. The Veteran had a moderate severity of radiculopathy. Therefore, the Board concludes that a disability rating in excess of 40 percent is not warranted for the right upper extremity radiculopathy from October 10, 2018 to December 15, 2019. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510. From December 16, 2019 The Board finds that a disability rating of 50 percent, but no higher, for a right (major) upper extremity disability is warranted, beginning on December 16, 2019. Increased disability was demonstrated on the December 16, 2019 VA examination. At that time, muscle strength and reflexes were reduced, and sensory examination showed decreases at the shoulder area, forearm, and fingers. Significantly, the examiner described severe numbness and intermittent pain. While the Veteran's radiculopathy was described as moderate on the right, the overall impairment is found to be productive of severe disability. As such, a 50 percent rating for severe incomplete paralysis is found to be warranted at that time. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.