Citation Nr: 22052012 Decision Date: 09/13/22 Archive Date: 09/13/22 DOCKET NO. 10-22 888A DATE: September 13, 2022 REMANDED Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the right upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter, is remanded. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the left upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran had active service from July 1991 to October 1991 and April 1996 to September 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2008 and May 2010 rating decisions. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In January 2017 and August 2017, the Board remanded these claims for additional development. In a November 2019 decision, the Board granted an initial rating of 20 percent for radiculopathy of the left upper extremity, prior to May 2013, and a rating of 40 percent, thereafter, denied entitlement to an initial increased rating for radiculopathy of the right upper extremity, and remanded the issue of entitlement to an increased rating for a cervical strain with degenerative disc disease. The Veteran subsequently appealed the November 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In October 2020, the parties agreed to a Joint Motion for Partial Remand (JMPR) that vacated and remanded the portions of the November 2019 Board decision that denied entitlement to initial higher ratings for the Veteran's radiculopathy of the right and left upper extremities. In March 2021, the Board remanded these claims for additional development. In a December 2021 decision, the Board denied entitlement to a rating higher than 20 percent for a cervical strain with degenerative joint disease and remanded the issues of entitlement to increased ratings for cervical radiculopathy of the bilateral upper extremities. These issues were again remanded by the Board in March 2022. 1. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the right upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter. 2. Entitlement to an initial rating higher than 20 percent for cervical radiculopathy of the left upper extremity, prior to May 16, 2013, and to a rating higher than 40 percent, thereafter. The Veteran seeks higher initial ratings for his cervical radiculopathy of the bilateral upper extremities. The December 2021 remand instructed the RO to obtain a VA medical opinion that discussed the significant changes in severity and the approximate date of the change in severity during the appeal period for the Veteran's radiculopathy. A VA medical opinion was obtained in January 2022, at which time the examiner stated that the Veteran did not have objective findings of unilateral or bilateral upper extremity radiculopathy, dating back at least to November 2020. The examiner stated the examiner was unable to explain the latter absence of objective findings versus the findings of 2018 but that radiculopathies tend to worsen over time and the findings become more pronounced. The examiner stated that if the results from November 2018 are conceded, the radiculopathies would have been mild and involved the C8/T1 nerve root and if the current radiculopathies are conceded, despite the absence of objective findings, they would be mild and involve roots C7-T1. The Board notes that the October 2020 JMPR indicated that in the prior Board decision, it was unclear why the Board did not consider Diagnostic Code 8513, for all radicular groups, and instead rated the Veteran under Diagnostic Code 8512, for the lower radicular group. As such, the Board remanded this appeal in March 2022 to obtain an addendum opinion that clarified the nerves affected and provided the evidence necessary to properly rate the disabilities according to the applicable criteria (38 C.F.R. § 4.124a, Diagnostic Codes 8510-8519). A medical opinion was obtained in April 2022, at which time the VA examiner opined that from the November 2018 VA examination to current, if radiculopathy was conceded based solely on subjective symptoms, it would correspond to radiculopathy of the lower cervical group. Importantly, however, this appeal is for entitlement to higher initial ratings, and the appeal period begins in January 2010. The January 2022 and April 2022 VA medical opinions indicate that the examiners used the November 2018 VA examination as a baseline and offered opinions based on that point of time to current. Unfortunately, prior to November 2018, the medical evidence of record offers conflicting findings. For example, during the January 2010 VA examination the Veteran had reduced sensation of the right thumb, absent triceps jerks, bilaterally and the examiner reported imaging evidence of a bilateral cervical radiculopathy, greater on the right than the left. A December 2011 electromyogram (EMG) revealed a mild, left ulnar neuropathy localized to the elbow, but specifically noted that there was no electrical evidence of cervical radiculopathy. Then, a May 2013 VA examination noted subjective symptoms, but no objective symptoms of radiculopathy. During the May 2015 VA examination, there was decreased sensation on examination of the bilateral shoulders and in February 2017, there was decreased sensation in the bilateral hands. An EMG from July 2017 again demonstrated a mild, left ulnar neuropathy at the elbow with no significant axon loss but no cervical radiculopathy noted on the report. VA examiners have indicated that the Veteran's upper, middle, and/or lower radicular groups have been affected, at various times prior to November 2018. On remand, an addendum VA medical opinion should be obtained that reconciles the evidence of record prior to the November 2018 and clarifies the nerves affected during this period on appeal. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion. The claims folder must be provided to the examiner for review. a) The examiner is requested to comment on any significant changes in severity and the approximate date of the change in severity during the appeal period for the Veteran's bilateral cervical radiculopathy, prior to November 2018. b) In particular, please reconcile the conflicting medical evidence of record prior to November 2018. c) Please identify which nerve(s), as described in the diagnostic criteria for diseases of the peripheral nerves (the upper radicular group (Diagnostic Code 8510), the middle radicular group (Diagnostic Code 8511), the lower radicular group (Diagnostic Code 8512), all radicular groups (Diagnostic Code 8513), the musculospiral nerve (radial nerve) (Diagnostic Code 8514), the median nerve (Diagnostic Code 8515), the ulnar nerve (Diagnostic Code 8516), the musculocutaneous nerve (Diagnostic Code 8517), the circumflex nerve (Diagnostic Code 8518), or the long thoracic nerve (Diagnostic Code 8519)), corresponds to the findings of record for the period on appeal prior to November 2018. In so opining, the examiner should consider and discuss the following: i) The January 2010 VA examination wherein the Veteran had reduced sensation of the right thumb, absent triceps jerk, bilaterally, and the examiner reported imaging evidence of a bilateral cervical radiculopathy, greater on the right than the left; ii) A December 2011 EMG demonstrating a mild, left ulnar neuropathy localized to the elbow with no electrical evidence of cervical radiculopathy; iii) A May 2013 VA examination noting subjective symptoms, but no objective symptoms of radiculopathy and reporting that the upper and middle radicular groups were affected; iv) A March 2015 VA examination demonstrating decreased sensation on examination of the bilateral shoulders and reporting that the upper, middle, and lower radicular groups were affected; v) An April 2015 VA examination reporting that the Veteran's lower radicular group was affected; vi) A February 2017 VA examination demonstrating decreased sensation in the bilateral hands; vii) An EMG from July 2017 demonstrating a mild, left ulnar neuropathy at the elbow with no significant axon loss, and no cervical radiculopathy noted on the report. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.