Citation Nr: 21041872 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-17 409 DATE: July 10, 2021 ORDER Entitlement to an initial 20 percent disability rating for right upper extremity radiculopathy from November 19, 2015 to September 19, 2017 is granted. Entitlement to a disability rating of 40 percent for right upper extremity radiculopathy from September 19, 2017 is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disk and joint disease of the cervical spine is remanded. Entitlement to a disability rating in excess of 40 percent for right upper extremity radiculopathy from September 19, 2017 is remanded. FINDINGS OF FACT 1. From November 19, 2015, the Veteran suffered from mild incomplete paralysis of a right upper extremity radicular group. 2. From September 19, 2017 the Veteran suffered from moderate incomplete paralysis of a right upper extremity radicular group. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for service-connected right upper extremity radiculopathy from November 19, 2015 forward have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8511. 2. The criteria for a rating of 40 percent for service-connected right upper extremity radiculopathy from September 19, 2017 forward have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to April 1987 and from November 1987 to December 1990. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in June 2019 and has since been returned for further adjudication. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. Descriptive words such as "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities. 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. The Board notes that this claim arises from the Veteran's original claim for an increased rating for his cervical spine. During this period, the Veteran's right upper extremity peripheral neuropathy was rated under Diagnostic Code 8516-8510. 38 C.F.R. § 4.124a. The right upper extremity (the Veteran's dominant arm) was assigned a noncompensable disability rating prior to September 19, 2017, and 20 percent thereafter. Disability ratings for the nerves, are found at 38 C.F.R. § 4.124a. There are several potentially applicable Diagnostic Codes for peripheral neuropathy. Diagnostic Code 8510 applies to the upper radicular group, Diagnostic Code 8511 to the middle radicular group, and Diagnostic Code 8512 to the lower radicular group. Diagnostic Code 8513 applies to complete or incomplete paralysis of all radicular groups. 38 C.F.R. § 4.124a. Diagnostic Codes 8514-8519 apply to complete or incomplete paralysis of the specific nerves: musculospiral (radial) nerve (Diagnostic Code 8514), median nerve (Diagnostic Code 8515), ulnar nerve (Diagnostic Code 8516), musculocutaneous nerve (Diagnostic Code 8517), circumflex nerve (Diagnostic Code 8518), and long thoracic nerve (Diagnostic Code 8519). Id. Notably, to the extent that the examination reports reflect that the Veteran has impairment of multiple nerves in the upper extremities, the Board notes that separate evaluations may not be assigned when evaluating an upper extremity peripheral nerve disability. See 38 C.F.R. § 4.124a, Note (Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings). Diagnostic Code 8510 (for which the Veteran's disability is currently rated) provides that mild incomplete paralysis of the upper radicular group is rated as 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. Diagnostic Code for the middle radicular group (Diagnostic Code 8511) and the lower radicular group (Diagnostic Code 8512) have identical ratings to Diagnostic Code 8510. Id. Under Diagnostic Code 8516, for the ulnar nerve by itself, a 10 percent rating is warranted for incomplete paralysis that is mild. A 30 percent rating (major extremity) and 20 percent rating (minor extremity) is warranted for incomplete paralysis that is moderate. A 40 percent rating (major extremity) and 30 percent rating (minor extremity) is warranted for incomplete paralysis that is severe. A 60 percent rating (major extremity) and 50 percent rating (minor extremity) is warranted for paralysis that is complete; the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Id. 1. Entitlement to an initial compensable disability rating for right upper extremity radiculopathy. The Veteran contends that he is entitled to a compensable disability rating for the right upper extremity radiculopathy prior to September 19, 2017. The Veteran underwent a VA examination in November 2015 in association with his cervical spine disability. He reported experiencing shooting pain and mild tingling in his fingers. The examiner noted hypoactive right reflexes, mild intermittent pain, paresthesias and/or dysesthesias, and stated that the Veteran suffered from mild radiculopathy of the middle radicular group. Based on this examination, the Board finds that the Veteran is entitled to an initial compensable disability rating based on mild right upper extremity radiculopathy. The Veteran reported pain and numbness, and on examination the examiner determined that the Veteran suffered from mild radiculopathy of the upper radicular group. As such, the Veteran is entitled to a 20 percent disability rating from November 19, 2015 forward, as this was the first instance of the Veteran suffering from mild incomplete paralysis of his right upper extremity, specifically one of the radicular groups (Diagnostic Code 8511). 2. Entitlement to a disability rating of 30 percent for right upper extremity radiculopathy from September 19, 2017. The Veteran next underwent a VA examination March 2017 in association with his cervical spine disability. He reported slight numbness in his fingers as well as shooting pain. At this examination, the examiner did not diagnose the Veteran with radiculopathy. However, the Veteran underwent an additional VA examination in November 2017. The examiner determined that the Veteran was right hand dominate, and the Veteran reported moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. On examination, the examiner determined that the Veteran now suffered from moderate incomplete paralysis, specifically noting involvement of both the upper radicular group and the right ulnar nerve. The Veteran again underwent a VA examination in April 2019 in association with his cervical spine disability. He was found to suffer from 4/5 decreased finger flexion and abduction, decreased right shoulder area, inner/outer forearm, and hand/finger sensation, and suffered from mild intermittent pain, paresthesias and/or dysesthesias, and numbness. While the examiner determined the Veteran suffered from mild radiculopathy, he indicated multiple radicular groups were affected. Based on the following evidence, the Board determines that the Veteran is entitled to a 40 percent disability rating for moderate incomplete paralysis of the right upper extremity from September 19, 2017, his date of claim, based on moderate incomplete paralysis of a radicular group upon examination in November 2017. Based on the Veteran's statements that his radiculopathy continues to worsen, the Board resolves doubt in his favor that his right upper extremity radiculopathy has been at least moderate in severity since 2017. While the Board acknowledges the involvement of multiple nerves/nerve groups during this period, as noted previously to assign the Veteran multiple ratings for the same symptomology in the upper extremity would constitute impermissible pyramiding. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disk and joint disease of the cervical spine. 2. Entitlement to a disability rating in excess of 30 percent for right upper extremity radiculopathy from September 19, 2017. In June 2021, the Veteran's representative submitted a statement that the Veteran's symptoms continue to worsen for his cervical spine and right upper extremity radiculopathy disabilities and requested additional VA examinations. As such, remand is necessary to obtain new VA examinations to evaluate the current symptoms and severity of the Veteran's disabilities. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his cervical spine and right upper extremity radiculopathy disabilities. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA cervical spine and peripheral nerves examination to determine the current symptoms, level of severity, and functional impairment associated with his cervical spine and right upper extremity radiculopathy. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.