Citation Nr: 21042635 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-05 347 DATE: July 13, 2021 ORDER Entitlement to an initial rating greater than 20 percent for cervical radiculopathy of the left upper extremity from April 28, 2008 to May 4, 2010, is denied. Entitlement to an initial 20 percent rating for cervical radiculopathy of the left upper extremity from May 5, 2010 to July 18, 2019, is granted. Entitlement to an initial rating greater than 20 percent for cervical radiculopathy of the left upper extremity from July 19, 2019, is denied. Entitlement to a rating in excess of 20 percent for a left shoulder disorder is denied. REMANDED Entitlement to service connection for left carpal tunnel syndrome, as separate from the service-connected left upper extremity radiculopathy, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Between April 28, 2008 to May 4, 2010, the Veteran's left upper extremity radiculopathy was characterized by mild incomplete paralysis; moderate incomplete paralysis was not shown. 2. Between May 5, 2010 to July 18, 2019, the Veteran's left upper extremity radiculopathy did not show any incomplete paralysis of the upper radicular group; he did show some radicular symptoms which were no more than mild in nature. 3. Since July 19, 2019, the Veteran's left upper extremity radiculopathy was characterized by mild incomplete paralysis; moderate incomplete paralysis was not shown. 4. Throughout the period on appeal, the Veteran's left shoulder disability has been manifested by limitation of motion of the left arm to shoulder level or greater. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 20 percent for cervical radiculopathy of the left upper extremity from April 28, 2008 to May 4, 2010, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8510. 2. The criteria for a 20 percent rating for cervical radiculopathy of the left upper extremity from May 5, 2010 to July 18, 2019, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8510. 3. The criteria for entitlement to a rating greater than 20 percent for cervical radiculopathy of the left upper extremity from July 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8510. 4. The criteria for a rating in excess of 20 percent for left shoulder disability are not met. 38U.S.C. §§1155, 5107 (2012); 38C.F.R. §§3.102, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5010-5201(2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1974 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal previously came before the Board in April 2019 and February 2020, at which time the issues remaining on appeal were remanded for additional development. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's cervical radiculopathy, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where, as in the case of the rating for the Veteran's shoulder disability, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). "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. 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 ; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to a rating greater than 20 percent for cervical radiculopathy of the left upper extremity from April 28, 2008 to May 4, 2010 2. Entitlement to a compensable rating for cervical radiculopathy of the left upper extremity from May 5, 2010 to July 18, 2019 3. Entitlement to a rating greater than 20 percent for cervical radiculopathy of the left upper extremity from July 19, 2019 The Veteran is seeking higher ratings for his left upper extremity cervical radiculopathy for all rated stages. He specifically asserts that the ratings assigned are not reflective of the severity of his cervical radiculopathy. During the course of the appeal, the Veteran's left upper extremity radiculopathy was rated at 20 percent between April 28, 2008 to May 4, 2010, noncompensable between May 5, 2010 to July 18, 2019, and at 20 percent from July 19, 2019 under DC 8510 (addressing impairment to the upper radicular group). 38 C.F.R. § 4.124a. Under DC 8510, higher ratings are warranted when there is incomplete paralysis that is: "mild" in nature (20 percent for both dominant and non-dominant); or "moderate" in nature (30 percent for non-dominant). 38 C.F.R. § 4.124a, DC 8510. Higher ratings are also available based on "severe" incomplete paralysis or complete paralysis of the upper radicular group. Id. It is noted that the Veteran's left hand is his non-dominant hand. Terms such as "mild," "moderate," and "severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. After a review of the evidence of record, the Board determines that higher ratings are not warranted prior to May 4, 2010, or after July 19, 2019, but for the period between those dates, affording the Veteran the benefit of the doubt, a 20 percent rating based on mild radicular symptoms should be granted. From April 28, 2008 to May 4, 2010 The Veteran's medical records from 2008 show that the Veteran had multiple MRIs done of his cervical spine and the surrounding area. These MRIs showed compression at the Veteran's C6-C7 vertebrae, the area of the cervical spinal collum which affects sensation of the inner forearm, hand, back of arms, and fingers. There was no further indication of a higher severity of the Veteran's cervical radiculopathy for this period of time, including from objective medical evidence or statements from the Veteran. Indeed, the evidence from the 2010 May 2010 VA examination shows no more than mild sensory deficiencies in the left upper extremity. The Veteran was able to generally use the arm without any impediment from the neurological disability. The Board finds this to be no more than "mild" in nature. Therefore, there is no basis on which to increase the Veteran's rating for cervical radiculopathy in excess of 20 percent for this stage. From May 5, 2010 to July 18, 2019 The Veteran underwent a VA neurological examination in May 2010, at which the examiner noted that there was no objective evidence of nerve root damage and cited a recent MRI. At the examination the Veteran did complain of pain and numbness in two fingers of his left hand, as well a general feeling of weakness in his left arm. His deep tendon reflexes were normal and there was no noted muscle atrophy, and no indicated decreased sensation. A December 2013 VA examination of the Veteran's shoulder found no radiculopathy in the Veteran's left arm. At this examination, the Veteran reported neck pain which radiates into his hands, he did not report any tingling or numbness in his arms or hands. His deep tendon reflexes were normal and there was no noted muscle atrophy, and no indicated decreased sensation. The above evidence indicates that the Veteran's left upper extremity radiculopathy had improved during this time. The Veteran's records also show that he had several MRIs during this period, all of which do not indicate any increased severity of his disorder. However, the Board does acknowledge that he continued to experience some radicular symptoms which were generally sensory in nature, without any impediment to the use of the left upper extremity. As such, affording the benefit of the doubt, the Board will grant a 20 percent rating based on "mild" symptoms for the period between May 5, 2010 and July 18, 2019. July 19, 2019 to the present The Veteran underwent a VA examination on July 19, 2019, to evaluate the severity of his left upper extremity radiculopathy. At the examination the Veteran reported intermittent tingling and pain. Upon examination, the Veteran's left upper extremity radiculopathy was noted to be of an overall "mild" severity due to numbness and intermitted pain, with mild incomplete paralysis. The Veteran was found to have decreased sensation in his forearm, hand, and fingers, with normal deep tendon reflexes, and no evidence of atrophy. Next, the Veteran was provided with a further examination in February 2020 to address the severity of his disability. At the examination, the Veteran's left upper extremity radiculopathy was noted to be characterized by incomplete paralysis of a "mild" nature. There is no further medical evidence which indicates that the severity of the Veteran's left upper extremity radiculopathy is not accurately compensated by the current 20 percent rating. Other Considerations The Board acknowledges the Veteran's assertions and belief that the severity of his left upper extremity radiculopathy is not contemplated in the assigned ratings. The Veteran is competent to report the observable physical symptoms of this disability, such as pain and numbness, which do not require specialized medical knowledge. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), See also 38 U.S.C. § 1110. On the other hand, such competent evidence concerning the nature and extent of the Veteran's left upper extremity radiculopathy have been provided by the medical personnel who have examined him during the periods on appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. When considering both his lay testimony and the medical evidence in combination, the Board continues to find that the general nature of his disability has not resulted in any greater than "mild" symptoms during all periods on appeal. Moreover, the Veteran has not provided any additional evidence to support his claims for higher ratings, such as private opinions or examinations. Accordingly, based on the evidence of record, higher ratings for the Veteran's left upper extremity radiculopathy are not warranted prior to April 2010 or from July 2019. However for the intervening period, the Board will grant a 20 percent rating based on mild radicular symptoms, to this extent that appeal is granted. 4. Entitlement to a rating in excess of 20 percent for a left shoulder disorder The Veteran seeks a higher rating for his service-connected left shoulder disability, which is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. See 38C.F.R. §4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Here, the Veteran's left shoulder disability is rated analogous to post-traumatic arthritis (Diagnostic Code 5010) under the criteria for limitation of motion of the arm (Diagnostic Code 5201). As an initial matter, ratings based on functional impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major. 38C.F.R. §4.69. The medical evidence in this case reflects that the Veteran is right-hand dominant. Therefore, his left upper extremity will be considered as the minor extremity. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38C.F.R. §4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38U.S.C. §5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38U.S.C. §5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5201 set forth that a maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5201 set forth that a maximum 30 percent evaluation is warranted where motion of the arm is limited to 25 degrees or less from the side. Higher evaluations are warranted based upon ankylosis of the scapulohumeral articulation, in which the scapula and humerus move as one piece (Diagnostic Code 5200), and impairment of the humerus, including fibrous union, nonunion, or loss of head of the humerus (Diagnostic Code 5202). 38 C.F.R. § 4.71a. Under the revised criteria for Diagnostic Code 5201, a higher rating is warranted when there is evidence of limitation of motion of the arm with flexion and/or abduction limited to 25 degrees from the side for the minor joint (30 percent). 38 C.F.R. § 4.71a. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi,17 Vet. App. 305, 314-16 (2003). Upon review of the relevant evidence, the Board finds that a rating in excess of 20 percent for the Veteran's left shoulder disability under Diagnostic Code 5010-5201 is not warranted. Here, the medical evidence of record for the period on appeal reflects that the Veteran's left shoulder limitation of motion is at shoulder level or greater. Turning to the record, the Veteran's medical records indicate that there was a marked reduction in the Veteran's range of motion as to abduction, however, there is no indication as to the specific degree of this reduction or if the Veteran's range of motion was limited to, or less than halfway between his shoulder and side. For example, in May 2010, left shoulder abduction was to 85 degrees; flexion to 80 degrees; external rotation to 65 degrees; and internal rotation to 55 degrees, all of which were with end-of-range pain which did not additionally limit movement following repetitive use testing. There was some tenderness to palpation in the shoulder joint. In December 2013, flexion was limited to 80 degrees with pain at 75 degrees. Abduction was limited to 80 degrees with pain at 75 degrees. Internal rotation was limited to 55 degrees with pain at 65 degrees. External rotation was limited to 65 degrees with pain at 55 degrees. The examiner stated that any additional loss of movement during periods of flare could not be stated without resort to mere speculation. The Veteran refused to perform repetitive use testing. No additional limitations were noted. He showed localized tenderness with some guarding. Muscle strength was complete and normal. He did not have any evidence of ankylosis. He was limited in his ability to lift and carry. The Veteran was provided with a new VA medical examination in April 2021. The examiner noted a rotator cuff tear and left shoulder degenerative arthritis. The Veteran reported that he could no longer lift his left arm above his head and that he suffers from flare-ups every 2-3 months which last 1-2 days and are characterized by stiffness and pain at an 8 out of 10 on the pain scale. He further stated that he treats his flare-ups with medications such as Flexeril and Tramadol. Upon examination, the Veteran displayed flexion and abduction to 90 degrees during normal use and after repetitive use. The examiner estimated that the Veteran's flexion and abduction would be limited to 85 degrees when used over time and during a flare-up. The examiner endorsed moderate crepitus and pain on palpation due to degenerative arthritis, however the examiner only endorsed pain on active and passive motion and not on weight-bearing or non-weightbearing. There was no documented atrophy in the left shoulder, and no diagnosed ankylosis in either shoulder. The Veteran exhibited pain, fatigability, and lack of endurance on movement. The examiner indicated that the Veteran would be unable to do tasks requiring the repetitive movement of the left shoulder joint, or weight-lifting using the left shoulder joint. Based on the above, evidence, the Board finds that an evaluation in excess of 20 percent for the Veteran's left shoulder disability is not warranted during the entire period on appeal. In this regard, there is no medical evidence that indicates range of flexion and/or abduction is limited to no more 25 degrees from the side, or that he was diagnosed with ankylosis of the scapulohumeral articulation (either actually diagnosed or functional), or impairment of the humerus joint. The Board observes that the Veteran's left shoulder disability for this period warrants no more than a 20 percent rating under either the old or the new rating criteria. The Board acknowledges the Veteran's subjective complaints of pain throughout his ranges of motion. However, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the left shoulder to less than those levels discussed above and, as such, does not serve as a basis for an increased evaluation at any point during the appeal period. Indeed, even accounting for the Veteran's refusal to complete repetitive use testing in 2103, and his reports of pain limiting his ability to lift his arm over his head in 2021, there is still no evidence to suggest that his arm movement is limited to 25 degrees or less from the side, which would provide for a higher rating. He is still able to move the shoulder. Further, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left shoulder disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). However, when taken as a whole, the Board finds that the medical evidence and the Veteran's lay testimony do not give rise to a higher rating under the diagnostic criteria. As such, for the reasons discussed above, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's left shoulder disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for carpal tunnel syndrome, as secondary to the service-connected cervical disorder, is remanded. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Inasmuch as the Board regrets any further delay in the final adjudication of this appeal, an additional remand is necessary. The Veteran initially claimed service connection of a neurological disability affecting the left upper extremity. In its February 2020 remand, the Board observed that in April 2019, an examination had confirmed left upper extremity radiculopathy, as well as carpal tunnel syndrome (CTS). Because this was a separate diagnosis, which could also account for the Veteran's claimed neurological symptoms in that extremity, the Board requested an opinion to speak to the potential secondary cause of the Veteran's CTS specifically due to his left upper extremity radiculopathy and speak to the potential independence of that disorder from his left upper extremity radiculopathy. In essence, was the CTS a separate diagnosis, and if so, was it either caused or aggravated by the cervical radiculopathy? The examiner noted that CTS would not be caused or aggravated by a disorder such as upper extremity radiculopathy, they also indicated that radiculopathy and CTS are distinct and separate diagnoses with separate etiologies. The Board finds that while the examiner complied with the remand instructions as listed, the instructions did not contemplate every potential theory of entitlement in question. The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing, including those unknown to the Veteran.). The Board observes that the Veteran was in a car accident while in service, which is the basis for the service connection of his left shoulder disability. That accident also resulted in healed fracturs of the second and third metacarpals of the left hand, and a chronic left sprained wrist, also both service-connected. As such, the Board finds it necessary to investigate whether this accident with its resultant wrist sprain and healed fractures could be a direct cause of the Veteran's CTS from his active duty service, or whether the present service-connected wrist and hand disabilities might cause or aggravate that disability. Additionally, secondary service connection should be investigated as to whether the Veteran's left shoulder disability could have caused and/or aggravated his diagnosed CTS. Additionally, the issue of entitlement to TDIU is inextricably intertwined with the other matter being remanded herein and must therefore also be remanded to be adjudicated concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the Board finds it necessary to remand the Veteran's claim for service connection for CTS to obtain an addendum opinion. The Veteran's claim for entitlement to TDIU is also remanded. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claims. 2. Obtain an addendum opinion, from the April 2021 examiner if possible, or an alternative suitable examiner, to discuss the nature and etiology of the Veteran's carpel tunnel syndrome (CTS). The complete claims file should be made available to the examiner. The examiner is requested to review all evidence in the record answer the following questions: Is it at least as likely as not that the Veteran's present CTS is etiologically related to any incident of active service, to include his in-service car accident with hand fracture? Is it at least as likely as not that the Veteran's CTS is caused and/or aggravated by his service-connected chronic left wrist sprain? Is it at least as likely as not that the Veteran's CTS is caused and/or aggravated by his service-connected healed fracture of the second and third metacarpal bones? Is it at least as likely as not that the Veteran's CTS is caused and/or aggravated by his service-connected shoulder disability? (Continued on the next page) A complete rationale and discussion should accompany all opinions. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor 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.