Citation Nr: 23015504 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 10-22 888A DATE: March 15, 2023 ORDER Entitlement to an initial rating higher than 20 percent for radiculopathy of the right upper extremity, prior to May 16, 2013, is denied. Entitlement to a rating higher than 40 percent for radiculopathy of the right upper extremity, from May 16, 2013, is denied. Entitlement to an initial rating higher than 20 percent for radiculopathy of the left upper extremity, prior to May 16, 2013, is denied. Entitlement to an initial rating higher than 40 percent for radiculopathy of the left upper extremity, from May 16, 2013, is denied. FINDINGS OF FACT 1. Prior to May 16, 2013, the Veteran does not have radiculopathy of the right upper extremity manifested by moderate or severe incomplete paralysis. 2. From May 16, 2013, the Veteran does not have radiculopathy of the right upper extremity that is manifested by severe incomplete paralysis. 3. Prior to May 16, 2013, the Veteran does not have radiculopathy of the left upper extremity manifested by moderate or severe incomplete paralysis. 4. From May 16, 2013, the Veteran does not have radiculopathy of the left upper extremity manifested by complete paralysis, to include substantial loss of use of the hand. CONCLUSIONS OF LAW 1. Prior to May 16, 2013, the criteria for an initial disability rating in excess of 20 percent for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8512. 2. From May 16, 2013, the criteria for a disability rating in excess of 40 percent for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8512. 3. Prior to May 16, 2013, the criteria for an initial disability rating in excess of 20 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8512. 4. From May 16, 2013, the criteria for a disability rating in excess of 40 percent for radiculopathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and September 2022. Increased Ratings 1. Entitlement to an initial rating higher than 20 percent for radiculopathy of the right upper extremity, prior to May 16, 2013. 2. Entitlement to a rating higher than 40 percent for radiculopathy of the right upper extremity, from May 16, 2013. 3. Entitlement to an initial rating higher than 20 percent for radiculopathy of the left upper extremity, prior to May 16, 2013. 4. Entitlement to an initial rating higher than 40 percent for radiculopathy of the left upper extremity, from May 16, 2013. The Veteran contends that he is entitled to higher initial ratings for his radiculopathy of the bilateral upper extremities. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath, 1 Vet. App. at 589. The Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14, which prohibits "[t]he evaluation of the same disability under various diagnoses." See Brady v. Brown, 4 Vet. App. 203, 206 (1993); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another). Under Diagnostic Code 8512, mild incomplete paralysis of the lower radicular group is assigned a 20 percent rating for either extremity. Moderate incomplete paralysis merits a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. Severe incomplete paralysis merits a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Complete paralysis merits a 70 percent rating for the major extremity and a 60 percent rating for the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8512. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). 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. By way of history, the Board notes that a May 2010 rating decision established service connection for cervical radiculopathy of the right and left upper extremities, as secondary to service-connected cervical strain with degenerative joint disease and assigned a 10 percent evaluation for the right upper extremity and a noncompensable rating for the left upper extremity, effective January 14, 2010. A July 2019 rating decision granted a 20 percent rating for the right upper extremity, effective January 14, 2010, and a 40 percent evaluation effective May 16, 2013. The July 2019 rating decision also granted a 40 percent rating for the left upper extremity, effective May 16, 2013, and a 30 percent evaluation, effective November 27, 2018. In a November 2019 decision, the Board denied entitlement to increased ratings for the right upper extremity and granted a 20 percent rating for the left upper extremity, prior to May 16, 2013, and a rating of 40 percent thereafter, which was effectuated in a July 2020 rating decision. The Veteran appealed the November 2019 Board decision to the Court. The parties of the October 2020 JMR determined, among other things, that the Board failed to discuss whether the Veteran should have been rated under Diagnostic Code 8513. Turning to the evidence of record, a January 2009 VA treatment note documented the Veteran's complaint of cervical pain radiating to the right upper extremity. Physical examination revealed deep tendon reflexes were 1+ at both the biceps and brachioradialis with no muscle atrophy or focal weakness. In a September 2009 VA treatment note, the Veteran described a parachute accident in 2001. Physical examination revealed deep tendon reflexes were symmetrical. The physician reported biceps reflex as trace and triceps reflex as 0. A December 2011 electromyography (EMG) revealed "no electrical evidence of cervical radiculopathy." The Veteran underwent a VA spine examination in January 2010. He reported daily pain radiating to the right arm and hand. Physical exam revealed motor strength appeared normal in both upper extremities. Sensation was normal with the exception of reduced sensation on the right thumb. Biceps jerks were 2+ and equal. Triceps jerks were symmetrically absent. The examiner diagnosed cervical spondylosis and cervical degenerative disk disease with imaging evidence of a bilateral cervical radiculopathy, greater on the right than the left. The Veteran underwent further VA examination in May 2013. Muscle strength was normal. Sensory and reflex exams were normal. In the right upper extremity, radiculopathy was noted to cause moderate intermittent pain, moderate paresthesia/dysesthesias, and moderate numbness. In the left upper extremity, radiculopathy was noted to cause severe intermittent pain, moderate paresthesia/dysesthesias, and moderate numbness. No other signs and symptoms of radiculopathy were indicated by the examiner. The Veteran reported that the radiculopathy made it difficult to work with his hands as an electrician. A VA examination was conducted in March 2015. The examination report indicated that the Veteran's dominant hand was his right. Muscle strength and reflex exams were normal. Sensory examination was normal except for decreased sensation in the bilateral shoulders. In the right upper extremity, radiculopathy was noted to cause mild paresthesia/dysesthesias and mild numbness. In the left upper extremity, radiculopathy was noted to cause mild paresthesia/dysesthesias and mild numbness. No other signs and symptoms of radiculopathy were indicated by the examiner. An examination in April 2015 returned similar results. Mild intermittent pain in the right and left upper extremities was noted. The examiner indicated that the Veteran's bilateral cervical radiculopathy negatively impacted his ability to work. Upon further VA examination in February 2017, muscle strength was normal. Sensory and reflex exams were normal, except for decreased sensation in the bilateral hands. The examiner indicated that the Veteran did not have radicular pain or symptoms. A July 2017 EMG again revealed no evidence of cervical radiculopathy. The Veteran underwent a VA peripheral nerves examination in November 2018. The examiner noted a diagnosis of right upper extremity radiculopathy. The Veteran reported tingling, loss of sensation, and numbness. He also reported a decrease in grip strength in both hands. Radiculopathy symptoms included right upper extremity moderate constant pain, moderate paresthesias/dysesthesias, and moderate numbness. The left upper extremity had moderate constant pain, moderate paresthesias/dysesthesias, and moderate numbness. Muscle strength was decreased but no atrophy was present. Reflexes were normal except in the triceps. A sensory examination revealed normal sensation except on the left forearm and hand/fingers. A sensory examination revealed normal sensation on the right and normal sensation on the left except the forearm and hand/fingers. The examiner reported moderate incomplete paralysis of the lower radicular group. The Veteran indicated that he used a brace occasionally for wrist pain. The examiner noted that the condition impacted the Veteran's ability to work. The Veteran reported that he lost zero to one weeks of work time in the last 12 months due to the radiculopathy. The Veteran was afforded a VA examination in November 2020. Muscle strength, reflexes and sensory examination were normal. No radiculopathy symptoms were reported. The examiner indicated that no radicular groups were affected. The Veteran was afforded a VA examination in June 2021. Muscle strength, reflexes and sensory examination were normal. The Veteran reported mild numbness, intermittent pain, and paresthesias/dysesthesias of the bilateral upper extremities, involving the middle radicular group. There were no objective signs of radiculopathy noted. Based on the Veteran's subjective symptoms, the examiner indicated that the Veteran's middle radicular groups, of both the left and right upper extremities, were affected. The Veteran was afforded a VA examination in September 2021. He reported pain, numbness, and tingling in both arms, with sharp pain. He indicated his grip was now weak, and it becomes worse with use and flares. He reported mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength, sensory and reflex examinations were normal. There were no trophic changes. Based on the Veteran's subjective symptoms, he was noted to have mild, incomplete paralysis of the radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper radicular group, middle radicular group and lower radicular group. It was noted that an EMG had been performed in 2013, which demonstrated left upper ulnar nerve neuropathy, but did not diagnose radiculopathy. The examiner indicated that the Veteran was limited in tasks of manual dexterity, such as working with tools, writing and typing. A VA medical opinion was obtained in January 2022 in order to clarify which of the Veteran's nerves are affected. The examiner noted that there are discrepancies between the various neck and peripheral nerve examinations of record and that it appears the neck and peripheral nerve exams from November 2018 were used to establish a baseline with which to assess the 2020 and 2021 exams; however, there is a discrepancy between the neck and peripheral nerve exams performed in 2018. The examiner explained that the peripheral nerve exam appears to be somewhat spurious based on muscle strength ratings of 3/5 - a level not validated on the 2020 and 2021 exams - and would not be expected to improve spontaneously. The examiner noted that the neck exam in November 2018 noted moderate CH/T-1 bilateral radiculopathy. Continuing, the examiner noted that at the time of the November 2020 neck exam, the Veteran had no objective findings or symptoms of radiculopathy. The examiner indicated that the Veteran would have self-reported symptoms on query had they been present. At the time of the neck exam in June 2021, the Veteran again had no objective findings to support a diagnosis of radiculopathy, despite bilateral symptoms. The January 2022 examiner opined that the previous examiner incorrectly diagnosed bilateral C7 radiculopathy, and that this diagnosis is not supported by objective findings, as required by VA guidelines. The January 2022 examiner stated that the peripheral nerve exam from September 2021 noted mild to moderate symptoms, but again had no objective findings. For all three of the most recent exams, the Veteran had intact/normal muscle strength, intact/normal reflexes, and intact/normal sensory. Therefore, the January 2022 examiner stated that per VA requirements, the Veteran does not have objective findings of unilateral or bilateral upper extremity radiculopathy dating at least back to November 2020. The examiner stated that the latter absence of objective findings versus the findings of 2018 was unexplainable, but the three exams occurred on different dates by different examiners, which strongly supports the absence of objective findings. The January 2022 examiner explained that radiculopathies tend to worsen over time and the findings become more pronounced, which clearly is not the case here. The January 2022 examiner opined that it is likely the exams in November 2018 are somewhat spurious, but if conceded, it is almost certain the radiculopathies would have been mild and involved the C8/T1 nerve root, and that if current radiculopathies are conceded, despite the absence of objective findings, they would be mild and involve roots C7-T1. An addendum was obtained in April 2022. The April 2022 examiner again stated that there is no documented objective evidence of cervical radiculopathy, but any nerve root impingement in the C8-T1 area would be the lower cervical group and any nerve root impingement in the C7/8-T1 area would be the lower cervical group as well. The examiner reiterated that the Veteran, however, does not have a diagnosis of cervical radiculopathy. An addendum opinion was obtained in November 2022. The November 2022 examiner stated that at the time of the 2010 spine exam, the Veteran did not have objective evidence supporting a diagnosis of radiculopathy. Therefore, prior to 2010, the Veteran did not have objective evidence of radiculopathy. The examiner noted that imaging suggested the possibility of a diagnosis, and this likely was used to support a clinical diagnosis of radiculopathy, which only requires symptoms; however, per VA guidelines, the Veteran did not meet the objective criteria for radiculopathy in 2010. Therefore, through 2010, the Veteran did not have objective substantiation of radiculopathy of either upper extremity. The November 2022 examiner explained that a clinical diagnosis of radiculopathy is all that is supported as of 2010. Therefore, through 2010, no nerve roots or individual nerves were involved with objectively determined radiculopathy. Continuing, the November 2022 examiner noted that in May 2013, muscle strength was normal, bilaterally, as were reflexes and sensory findings. The November 2022 examiner explained that although the Veteran had symptoms, the Veteran did not have objectively determined radiculopathy, per VA guidelines. The examiner stated that if conceded on a subjective clinical basis only, the severity would be mild, and this would also apply to 2010 if it is conceded, despite the absence of clinical findings. The examiner stated that the ratings on the 2013 exam are not justified as there is clearly no muscle involvement and there is no objective information with which to identify the nerve roots for either 2010 or 2013, if mild radiculopathies are conceded in the absence of objective findings. At the time of the neck exam in April 2015, muscle strength was normal, as were reflexes and sensory findings. The examiner stated that again, there is no objective evidence supporting a diagnosis of radiculopathy involving any nerve or nerve root, per VA guidelines. The examiner noted that symptoms are reported but do not suffice to objectively identify a radiculopathy. The November 2022 examiner stated that the previous examiner identified mild C8/T1 involvement, but this is not justified in the absence of objective findings. If conceded, it would be mild involving C8/T1 only. The November 2022 examiner noted that at the time of the 2017 neck exam, normal muscle strength was identified, bilaterally, as were normal reflexes. All sensory was normal except for the left hand and fingers, indicating a mild left radiculopathy of C7/8. Continuing, the November 2022 examiner stated that unfortunately, the previous examiner did not identify whether both the ulnar and median nerves were involved, which would have been readily discernible on the sensory exam. Therefore, one can only identify the left mild radiculopathy of C7-8. The November 2022 examiner stated that, interestingly, the previous examiner noted an absence of symptoms. At the time of the November 2018 peripheral nerve exam, bilateral upper extremity radiculopathies were diagnosed, as symptoms were reported, bilaterally, and wrist extension and flexion as well as grip were noted to be weakened, bilaterally. However, the November 2022 VA examiner stated that the ratings for grip are likely skewed, as there were no muscle findings identified in 2017 and the Veteran would not be expected to develop to that severity so quickly. Additionally, sensory was decreased from C7/8/T1 on the left only, while symptoms were reported bilaterally. The November 2022 examiner stated that they concur with the assessment that this involves only the lower radicular group and radiculopathy does not apply to individual nerve branches, addressing only the nerve root involvement. The examiner stated, to reiterate, individual specific nerves are not relevant other than nerve roots, the ulnar, median, and radial nerves and radiculopathies are not assessed by identifying individual peripheral nerve branch involvement. The examiner opined that the rating would be moderate based on the presence of muscle strength loss. However, it is likely the grip strength loss was overrated and the true level of severity at the time of the peripheral nerves exam in 2018 would be mild to moderate. The November 2022 examiner stated that this discussion addresses the individual exams without consideration of the EMGs and tries to establish a level of severity as if the Veteran had radiculopathy, which the Veteran did not have through 2017, and likely in 2018. The examiner stated that if radiculopathy in 2018 is conceded, it is profoundly overrated. The November 2022 examiner explained that the 2011 and 2017 EMGs clearly and unequivocally eliminate a diagnosis of radiculopathy of either upper extremity. The examiner stated that this significantly casts doubt on the validity of the 2018 exam. The examiner opined that there is no evidence of any change significant enough to go from no documented muscle loss to bilateral 3/5 muscle strength, and the 2018 exam is in error, as a diagnosis of bilateral cervical radiculopathies of the upper extremity is not justified. The November 2022 VA examiner noted that the January 2010 exam reported decreased sensation of the right thumb, absent triceps jerk bilaterally, and imaging evidence suggesting radiculopathy, right greater than left, and the 2011 EMG noted mild left ulnar neuropathy localized at the elbow with no evidence of cervical radiculopathy. The examiner opined that cubital tunnel syndrome is unrelated to radiculopathy and the 2010 exam notwithstanding, the Veteran did not have objective evidence of radiculopathy on the 2011 EMG. The November 2022 examiner noted that the 2013 exam discussed above has only subjective symptoms and no objective findings. The examiner opined that the 2015 exam is also erroneous, as there had been no evidence of C5/6 involvement and there was none on the 2011 and 2017 EMGs. More importantly, the 2017 EMG again noted left cubital tunnel syndrome and no radiculopathy. Therefore, the examiner opined that through 2017, the Veteran did not have cervical radiculopathy. The November 2022 examiner stated that this is unequivocal, as EMGs are the gold standard for diagnosis. The examiner indicated that they cannot reconcile all the nuances of the symptoms and findings which were reported, but there is no radiculopathy diagnosis through the EMG in 2017. The examiner concluded that, unfortunately, symptoms attributed to radiculopathy by the Veteran and respective examiners are obviously not due to radiculopathy. The examiner stated that further confusing the issue, but not altering the absolute fact that the Veteran did not have radiculopathy of either upper extremity through the EMG in 2017, is that the clinical diagnosis of radiculopathy can be made on symptoms alone, which does not comport to VA requirements. The November 2022 examiner stated they were unable to explain any findings on the individual exams that suggest radiculopathy, but through the EMG in 2017, there was no radiculopathy of either upper extremity. The examiner opined that symptoms involving the left ulnar nerve and the fourth and fifth digits are likely due to unrelated cubital tunnel syndrome. The examiner stated the 2018 exam cannot be explained in view of the negative EMG in 2017 and it is almost a medical certainty that the Veteran would not have developed 3/5 muscle strength changes and loss of reflexes in that time. The examiner stated that the only absolute is that the Veteran did not have radiculopathy from 2010 through 2017 and it is less likely than not that the 2018 exam serves as a valid assessment, with overestimated severity. The examiner opined that on the basis of the 2017 exam and EMG, it is less likely than not that the Veteran did have upper extremity radiculopathy in 2018; through 2017, no individual nerves or nerve roots were involved with radiculopathy. The examiner stated that this is unequivocal. The examiner explained that if radiculopathy is conceded for either upper extremity at the time of the 2018 exam, it is all but certain that the muscle strength rating is erroneous as there is no evidence of an acute disc herniation that would explain such a dramatic change in one year's time. Prior to May 16, 2013 The Veteran is service connected for a cervical strain with degenerative disc disease. VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). For the period prior to May 16, 2013, the Veteran is in receipt of 20 percent ratings under Diagnostic Code 8512, for each upper extremity, representing radiculopathy of mild severity. The Veteran is right hand dominant. In order to warrant an evaluation greater than 20 percent for the either upper extremity, the evidence must support the presence of at least moderate incomplete paralysis. The Board finds that the most probative evidence of record is against a finding that prior to May 2013 the Veteran's radiculopathy of the bilateral upper extremities was manifested by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy, or complete paralysis, to warrant ratings higher than the currently assigned 20 percent. The Board thus finds that the level of impairment, prior to May 2013, does not more nearly approximate a moderate severity, for either upper extremity. The Board acknowledges the lay assertions of pain, numbness, and other subjectively reported symptoms. However, as discussed, after a review of all the evidence of record, including the prior examination findings and reported symptoms, the November 2022 VA examiner explained that it is "unequivocal" that no individual nerves or nerve roots were involved with radiculopathy and the Veteran did not have radiculopathy from 2010 through 2017 based on the EMGs of record, which is noted to be the "gold standard" for diagnosing radiculopathy. The examiner noted the various findings of record, such as the January 2010 exam reporting decreased sensation of the right thumb, absent triceps jerk bilaterally, and imaging evidence suggesting radiculopathy, right greater than left, but still determined that the "only absolute" is that the Veteran did not have radiculopathy from 2010 to 2017, based on the EMGs. The examiner stated that even if conceding a radiculopathy based solely on subjective symptoms, there is no objective information with which to identify the nerve roots affected for either 2010 or 2013. The Board finds the January 2022, April 2022 and November 2022 VA examiners' opinions to be probative and persuasive. The VA examiners have medical training, and reviewed the available medical records, the Veteran's statements, and all prior examinations, to include those with conflicting findings, and explained that there is no objective evidence that the Veteran had radiculopathy of the bilateral upper extremities. The Board has considered all other potentially applicable Diagnostic Codes, including Diagnostic Code 8513, which provides ratings for incomplete paralysis of all radicular groups; however, the probative and persuasive evidence of record, to include the EMGs of record, indicates that the Veteran did not have radiculopathy of the bilateral upper extremities, prior to 2013. Furthermore, the VA examiners also opined, based on the evidence as a whole, that even if radiculopathy was conceded, it would affect the lower cervical group, not all radicular groups, which corresponds to Diagnostic Code 8512. See, e.g., April 2022 and November 2022 VA opinions. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings in excess of 20 percent for the right and left upper extremities, prior to May 2013. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. From May 16, 2013 Effective May 16, 2013, the Veteran's right and left upper extremities are each rated as 40 percent disabling, under Diagnostic Code 8512. To warrant a rating higher than 40 percent for the right arm, there must be severe incomplete paralysis. To warrant a rating higher than 40 percent for the left arm, there must be complete paralysis of all intrinsic muscles of hand, and some or all of flexors of wrist and fingers paralyzed (substantial loss of use of hand). Regarding the left arm, there is no evidence of complete paralysis of all intrinsic muscle of the hand and some or all of the flexors of the wrist and fingers paralyzed. Furthermore, there is no evidence of substantial loss of use of hand. The Veteran has not asserted that he suffers from actual or functional substantial loss of use of the left hand or complete paralysis of the muscles of the hand. There is no medical evidence that indicates the Veteran's left upper extremity disability more nearly approximates this criterion. Therefore, a rating higher than 40 percent under Diagnostic Code 8512 for the left upper extremity is not warranted based on the lay and medical evidence of record. Regarding the right upper extremity, there is no evidence of severe incomplete paralysis for the period from May 16, 2013. The Board finds that the most probative evidence of record is against a finding that from May 2013 the Veteran's radiculopathy of the right upper extremity was manifested by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy, or complete paralysis, to warrant a rating higher than the currently assigned 40 percent. The Board thus finds that the level of impairment, from May 2013, does not more nearly approximate a severe severity for the right extremity. The Board acknowledges the lay assertions of pain, numbness, and other subjectively reported symptoms. Examinations also revealed various symptoms such as decreased reflexes and decreased muscle strength. Prior examinations also reported that multiple nerves were affected. For example, based on subjective symptoms, the May 2013 VA examination indicated the upper and middle radicular groups were affected, the March 2015 VA examination indicated the upper, middle and lower radicular groups were affected, the April 2015 VA examination indicated the lower radicular group was affected, and the November 2018 VA examination indicated that the upper, middle and lower radicular groups were affected. Importantly, however, January 2022, April 2022 and November 2022 VA examiners explained that the Veteran does not have radiculopathy of the upper extremities and there were no objective symptoms related to radiculopathy. The November 2022 examiner stated they were unable to explain any findings on the individual exams that suggest radiculopathy, but through the EMG in 2017, there was no radiculopathy of either upper extremity. The examiner opined that symptoms reported during examinations involving the left ulnar nerve and the fourth and fifth digits are likely due to unrelated cubital tunnel syndrome. The examiner stated the 2018 exam cannot be explained in view of the negative EMG in 2017 and it is almost a medical certainty that the Veteran would not have developed reduced muscle strength changes and loss of reflexes in that time. The examiner stated that the only absolute is that the Veteran did not have radiculopathy from 2010 through 2017 and it is less likely than not that the 2018 exam serves as a valid assessment, with overestimated severity. The examiner opined that on the basis of the 2017 exam and EMG, it is less likely than not that the Veteran had upper extremity radiculopathy in 2018; through 2017, no individual nerves or nerve roots were involved with radiculopathy and that this is unequivocal. The examiner explained that if radiculopathy is conceded for either upper extremity at the time of the 2018 exam, it is all but certain that the muscle strength rating is erroneous as there is no evidence of an acute disc herniation that would explain such a dramatic change in one year's time. The November 2022 examiner explained that the 2017 EMG clearly and unequivocally eliminates a diagnosis of radiculopathy of either upper extremity. The examiner stated that this significantly casts doubt on the validity of the 2018 exam of record. The examiner opined that there is no evidence of any change significant enough to go from no documented muscle loss in a February 2017 VA examination to bilateral 3/5 muscle strength, and the 2018 exam is in error, as a diagnosis of bilateral cervical radiculopathies of the upper extremity is not justified. In the recent September 2021 VA examination, muscle strength, sensory and reflex examinations were normal. There were no trophic changes. The Board finds that overall, the Veteran's service-connected right upper extremity has not been manifested by symptoms that more nearly approximate at severe severity to warrant a higher rating. The Board finds the January 2022, April 2022 and November 2022 VA examiners' opinions to be probative and persuasive. The VA examiners have medical training, and reviewed the available medical records, the Veteran's statements, and all prior examinations, to include those with conflicting findings, and explained that there is no objective evidence that the Veteran had radiculopathy of the bilateral upper extremities and that the evidence of record demonstrating reduced muscle strength was more likely than not an error. Furthermore, the November 2022 examiner opined that if conceded, the Veteran's rating would be moderate based on the presence of muscle strength loss during the 2018 examinations, however, it is likely the grip strength loss was overrated and the true level of severity at the time of the peripheral nerves exam in 2018 would be mild to moderate. There is no evidence of severe severity for the right upper extremity. Based on the above, the Board finds that the disabilities are primarily manifested by subjective symptoms. The EMGs of record indicate that the Veteran does not have radiculopathy of the upper extremities. The Board thus finds that the level of impairment does not more nearly approximate the criteria to warrant higher ratings. The Board has considered all other potentially applicable Diagnostic Codes, including Diagnostic Code 8513, which provides ratings for incomplete paralysis of all radicular groups; however, the probative and persuasive evidence of record, to include the EMGs of record, indicates that the Veteran did not have radiculopathy of the bilateral upper extremities, from 2013. Furthermore, the VA examiners also opined, based on the evidence as a whole, that even if radiculopathy was conceded, it would affect the lower cervical group, not all radicular groups, which corresponds to Diagnostic Code 8512. See, e.g., April 2022 and November 2022 VA opinions. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings in excess of 40 percent for the right and left upper extremities, from May 2013. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 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.