Citation Nr: 21041890 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-30 662 DATE: July 10, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy is denied. Entitlement to an initial compensable disability rating prior to July 14, 2017 for left upper extremity radiculopathy, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right upper extremity radiculopathy has been approximated by no more than mild incomplete paralysis of the upper radicular group. 2. Prior to July 14, 2017, the preponderance of the evidence of record is against finding that the Veteran had manifestations of left upper extremity radiculopathy. 3. From July 14, 2017, the Veteran's left upper extremity radiculopathy has been approximated by no more than mild incomplete paralysis of the upper radicular group. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2020). 2. The criteria for an initial compensable rating for left upper extremity radiculopathy prior to July 14, 2017, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to February 2012, with an additional period of active duty for training from July 1986 to December 1986. These matters come to the Board of Veterans' Appeals (Board) from a November 2012 rating decision which, in pertinent part, granted service connection for degenerative joint disease of the cervical spine, evaluated at 10 percent, effective March 1, 2012, or the first day after the Veteran separated from service. In November 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board Central Office hearing in Washington, DC. A transcript of the hearing is of record. In March 2018, the Board remanded the cervical spine increased rating claim for further development, to include obtaining a VA examination to assess the severity of the Veteran's cervical spine disability and any neurologic manifestations. In a July 2019 rating decision, the RO granted service connection for right and left upper extremity radiculopathy, evaluated at 20 percent each, effective August 2, 2018. In February 2020, the Board remanded the cervical spine increased rating claim for further development, to include a VA examination to assess the severity of her cervical spine disability. In an October 2020 rating decision, the RO granted an increased 30 percent evaluation for the Veteran's cervical spine disability, effective September 3, 2020. In a February 2021 decision, the Board denied the cervical spine increased rating claim. Pursuant to 38 C.F.R. § 4.71a, General Rating Formula, Note 1, the Board remanded the issues of entitlement to initial compensable disability ratings for right and left upper extremity radiculopathy prior to August 2, 2018, and in excess of 20 percent each thereafter, for further development, to include obtaining a VA medical opinion. In a March 2021 rating decision, the RO granted an effective date of March 1, 2012 for the Veteran's 20 percent evaluation for right upper extremity radiculopathy, and an effective date of July 14, 2017 for the Veteran's 20 percent evaluation for left upper extremity radiculopathy. Thus, the issues on appeal have been recharacterized as listed on the title page of this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). 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. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy. 2. Entitlement to an initial compensable disability rating prior to July 14, 2017 for left upper extremity radiculopathy, and in excess of 20 percent thereafter. The Veteran contends that increased ratings are warranted for her bilateral upper extremity radiculopathy associated with her cervical spine disability. The Veteran's bilateral upper extremity radiculopathy is rated under Diagnostic Code (DC) 8510. Her right upper extremity radiculopathy is rated at 20 percent from March 1, 2012 and her left upper extremity radiculopathy is rated at 20 percent from July 14, 2017. As the Veteran's increased rating claim for bilateral upper extremity radiculopathy is part of her cervical spine increased rating claim pursuant to 38 C.F.R. § 4.71a, General Rating Formula, Note 1, the Board has considered her bilateral upper extremity radiculopathy claim from the date of her cervical spine claim. As her cervical spine claim was filed as part of her separation from service, the Board has considered the increased rating claim for bilateral upper extremity radiculopathy from March 1, 2012, or the first day after her separation from service. DC 8510 rates neurological impairment based on the degree of complete or incomplete paralysis of the upper radicular group (five and sixth cervicals). Incomplete paralysis warrants a 50 percent (major) or 40 percent (minor) evaluation if it is severe; a 40 percent (major) or 30 percent (minor) evaluation if it is moderate; and a 20 percent (major or minor) evaluation if it is mild. Complete paralysis of the upper radicular group where all shoulder and elbow movements are lost or severely affected and hand and wrist movements are not affected warrants a maximum 70 percent (major) or 60 percent (minor) evaluation. 38 C.F.R. § § 4.124a, DC 8510. The term "incomplete paralysis" with peripheral nerve injuries 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. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Note preceding DC 8510. 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, 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 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, service treatment records reflect that in May 2011, the Veteran was seen for complaints of neck pain. While she denied numbness or tingling of the upper extremities, she admitted to pain and weakness in her right arm. She was diagnosed with cervicalgia and her treating clinician indicated that her right arm pain may be due to cervical disc disease. On her November 2011 retirement examination, she reported numbness and tingling in her fingers, but an associated neurologic examination was objectively normal. Post-service, an April 2012 VA cervical spine examination report reflects that while the Veteran claimed bilateral upper extremity neurologic manifestations, the examination was normal and the examiner found no evidence of bilateral upper extremity radiculopathy. However, a January 2013 treatment record and a February 2013 electrodiagnostic study reflects the Veteran reported chronic right-sided neck pain, numbness and tingling involving the volar tips of all five fingers bilaterally, and right upper extremity weakness with overhead activities. While cervical radiculopathy was suspected, the electrodiagnostic study revealed no evidence of radiculopathy. Rather, the Veteran was found to have bilateral ulnar neuropathies across both elbows. A July 14, 2017 treatment record reflects the Veteran reported history of neck pain radiating to her right side but now pain was also radiating to her left side for approximately six weeks. A July 2017 imaging study noted new onset of left upper extremity pain and weakness but revealed unchanged degenerative disc disease at C5-6 with no acute findings. In August 2017, the Veteran reported neck pain and numbness and tingling in her hands. She reported that the pain radiating from her neck had increased in intensity over the last one to two months. In September 2017, the Veteran complained of right shoulder pain lasting three months. In October 2017, she reported left shoulder pain with insidious onset in June or July 2017. In August 2018, the Veteran reported neck pain radiating down her left arm to all fingers beginning in summer of 2017. She was diagnosed with radiculopathy. An April 2019 VA cervical spine examination report revealed normal muscle strength in the elbows, wrists, and fingers, except for the left finger where abduction was reduced to 4/5. There was no muscle atrophy but reflexes were hyperactive without clonus in the biceps, triceps, and brachioradialis. Sensation was decreased in the hand and fingers. The Veteran reported mild bilateral intermittent pain and paresthesias and/or dysesthesias but denied numbness. The examiner diagnosed overall mild bilateral radiculopathy of the C5/6/7 nerve roots. In an August 2019 addendum opinion, the examiner indicated that the Veteran's cervical radiculopathy manifested as bilateral radiation of pain into her shoulders and upper arms. A September 2020 VA cervical spine examination report reflects the Veteran reported chronic, constant, stabbing pain in the posterior neck that would sometimes shoot down both arms with numbness and tingling. Muscle strength and reflexes were normal and there was no atrophy. Sensation was decreased in the shoulders, inner/outer forearms, and hand/fingers. The Veteran reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner diagnosed overall mild bilateral cervical radiculopathy at the C5/6 nerve root. In a February 2021 VA medical opinion, the examiner indicated that the Veteran's right upper extremity radiculopathy and right shoulder pain manifested in 2012, while her left upper extremity radiculopathy and left shoulder pain manifested in June 2017. The examiner indicated that the Veteran's radiculopathy was mild bilaterally at the time it manifested. After a review of the evidence of record, the Board finds that the Veteran's right upper extremity radiculopathy was manifested by symptoms that more closely approximate mild impairment throughout the appeal period and her left upper extremity radiculopathy was manifested by symptoms that more closely approximate mild impairment from July 14, 2017. The evidence shows that the Veteran's upper extremity radiculopathy is manifested by intermittent pain, paresthesias and/or dysesthesias, and numbness, resulting in overall mild radiculopathy. While there is evidence of hyperactive reflexes and decreased sensation, muscle strength has been essentially, and most recently, normal, and there was no muscle atrophy. Examining clinicians have described her radiculopathy as mild overall, and absent findings of a combination of more significant sensory changes and reflexes or motor changes, the Board finds that the criteria for a rating of 40 percent (major) or 30 percent (minor) for moderate incomplete paralysis are not more closely approximated. As to her left upper extremity radiculopathy, the Board finds that a compensable rating is not warranted prior to July 14, 2017. While a July 14, 2017 treatment record reports new onset of neck pain radiating into her left arm approximately six weeks earlier, and the February 2021 examiner noted onset in June 2017, the exact date of onset is unclear. However, the July 14, 2017 record is the earliest ascertainable date in the record that documents onset of left upper extremity radiculopathy and it is from this date that the Veteran is in receipt of a compensable rating. The preponderance of the evidence is against awarding ratings in excess of those currently assigned for the Veteran's right and left upper extremity radiculopathy. Accordingly, the Board finds that an initial rating in excess of 20 percent for right upper extremity radiculopathy and an initial compensable rating for left upper extremity radiculopathy prior to July 14, 2017, and in excess of 20 percent thereafter, is not warranted, and the Veteran's claims are denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.