PERIPHERAL NERVE DISORDERS

GREGORY DEEMER · 2023 · Case ID: 23068054

MIXED

Summary

The veteran, who served in the Illinois Air National Guard and the U.S. Army Reserve, appeals a Regional Office (RO) decision that reduced his disability rating for left upper extremity radiculopathy from 20 percent to 0 percent, effective February 1, 2019. The veteran also appeals the denial of increased ratings for this condition for specific periods. The Board reviewed the evidence, including the March 2017 VA examination, an April 2017 addendum, a July 2017 private treatment record, a July 2020 VA examination, and private chiropractic records. The Board found the RO's reduction improper because the evidence did not adequately demonstrate improvement in the veteran's condition. The March 2017 VA exam noted mild radiculopathy symptoms and the veteran's report of worsening symptoms, while a July 2017 private record indicated the condition was stable but not improved. Consequently, the Board restored the 20 percent disability rating for left upper extremity radiculopathy, effective February 1, 2019. However, the Board denied entitlement to higher ratings for the periods of February 15, 2017, to February 18, 2020, and from February 19, 2020, onward. The Board found that the evidence did not support a disability level beyond mild incomplete paralysis for the earlier period or moderate incomplete paralysis for the later period, as required for higher ratings under Diagnostic Code 8510. The Board noted the veteran's testimony of worsening symptoms and the private physician's documentation of pain and weakness, but ultimately found the July 2020 VA exam's characterization of the condition as "mild" persuasive for denying the increased ratings.

Rationale

Reduction from 20% to 0% was improper.; Evidence did not demonstrate adequate improvement.; March 2017 VA exam noted mild symptoms; veteran reported worsening.; July 2017 private record noted condition stable but not improved.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8510

Docket No.

19-37 519

Full Decision Text

Citation Nr: 23068054
Decision Date: 12/28/23 Archive Date: 12/28/23

DOCKET NO. 19-37 519
DATE: December 28, 2023

ORDER

The reduction from 20 percent to 0 percent, for left upper extremity radiculopathy, effective February 1, 2019, was improper, and the 20 percent disability evaluation is restored, effective February 1, 2019.

Entitlement to a disability evaluation in excess of 20 percent for left upper extremity radiculopathy from February 15, 2017 to February 18, 2020 is denied.

Entitlement to a disability rating in excess of 40 percent for left upper extremity radiculopathy from February 19, 2020, is denied.

FINDINGS OF FACT

1. In an October 2018 rating decision, the Regional Office reduced the rating for the Veteran's left upper extremity radiculopathy from 20 percent disabling to noncompensable, or 0 percent disabling, effective February 1, 2019. The 20 percent rating had been in effect less than 5 years.

2. At the time of the reduction, there was reasonable doubt as to whether there was improvement in the Veteran's service-connected left upper extremity radiculopathy.

3. For the period from February 15, 2017 to February 18, 2020, it is not factually ascertainable that the Veteran's left upper extremity is manifest by more than mild incomplete paralysis of the major extremity

4. For the period from February 19, 2020, it is not factually ascertainable that the Veteran's left upper extremity is manifest by more than moderate incomplete paralysis of the major extremity.

CONCLUSIONS OF LAW

1. The criteria to reduce the disability rating assigned for service-connected left upper extremity radiculopathy from 20 percent to 0 percent, effective February 1, 2019, have not been met; restoration is warranted. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.130, Diagnostic Code 8510.

2. The criteria for a disability rating in excess of 20 percent, from February 15, 2017, and in excess of 40 percent, from February 19, 2020, for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on Active Duty for Training in the Illinois Air National Guard from January 1981 until his honorable discharge April 1981, with additional periods of active duty for training and inactive duty for training. Subsequently, the Veteran served on active duty in the United States Army Reserve from March 2003 until his honorable discharge in February 2007 and from November 2009 until his honorable discharge in November 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

The Veteran testified before the undersigned at a virtual hearing in September 2022.

In September 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence.

By way of background, the Veteran filed an original disability claim for, inter alia, numbness in the left arm and hand, which was received in May 2015. Following an examination of the Veteran in August 2015, a September 2015 rating decision granted entitlement to service connection for radiculopathy of the left upper extremity, and a 20 percent evaluation was assigned from May 22, 2014. In February 2017, the Veteran filed a claim for increase. Following an examination of the Veteran in March 2017, the Regional Office issued a rating decision in June 2017, proposing to discontinue the Veteran's 20 percent evaluation. In October 2018, the Regional Office issued a rating decision, decreasing the Veteran's evaluation for left upper extremity radiculopathy from 20 percent to noncompensable, effective February 1, 2019. Thereafter, the Veteran
5, a September 2015 rating decision granted entitlement to service connection for radiculopathy of the left upper extremity, and a 20 percent evaluation was assigned from May 22, 2014. In February 2017, the Veteran filed a claim for increase. Following an examination of the Veteran in March 2017, the Regional Office issued a rating decision in June 2017, proposing to discontinue the Veteran's 20 percent evaluation. In October 2018, the Regional Office issued a rating decision, decreasing the Veteran's evaluation for left upper extremity radiculopathy from 20 percent to noncompensable, effective February 1, 2019. Thereafter, the Veteran timely disagreed with the evaluation assigned and perfected his appeal to the Board. In February 2020, while his appeal was pending, the Veteran filed a claim for increase with the Regional Office. In July 2021, the Regional Office issued a rating decision, increasing the Veteran's disability evaluation for left upper extremity radiculopathy from noncompensable to 40 percent, effective February 19, 2020. As such, the appeal period for this claim begins February 2017, when the Veteran filed his claim for increase, and continues to the present day, as of the date of this decision. The relevant period for the increased rating component of the Veteran's claim also includes the one-year look-back period prior to the February 2017 date when the Veteran filed his claim for increase. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "one-year look-back period").

Rating Reduction

1. The reduction from 20 percent to 0 percent, for left upper extremity radiculopathy, effective February 1, 2019, was improper, and the 20 percent disability evaluation is restored, effective February 1, 2019.

Before addressing whether this reduction was warranted, the Board must first determine whether the Regional Office adhered to the proper procedure. Specifically, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2).

In this case, the proper procedures were followed for implementing the reduction. The Regional Office proposed the reduction in a June 2017 rating decision that was mailed to the Veteran that same month. The final rating action was issued in October 2018, with the reduction to be effective February 1, 2019, which was more than 60 days after the date of the notice of the proposed reduction. Therefore, there was compliance with all requisite procedural matters.

The United States Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Specifically, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13).

A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

There are higher evidentiary requirements for reducing ratings that have been at the same level for more than five years, which is not the case in this appeal.
actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

There are higher evidentiary requirements for reducing ratings that have been at the same level for more than five years, which is not the case in this appeal. 38 C.F.R. § 3.44 (c).

For the reasons discussed below, the Board finds that evidence of improvement was not demonstrated at the time of the October 2018 rating decision, and the reduction was indeed improper.

The Regional Office reduced the Veteran's disability rating for left upper extremity radiculopathy from 20 percent to noncompensable, or 0 percent, based on the March 2017 examination report and associated April 2017 addendum report, and in particular a finding in the addendum report that the Veteran's nerve conduction studies were normal leading the examiner to conclude that "there is no evidence [...] of radiculopathy of either upper extremit[y]."

While the Board recognizes that the overall conclusion of the March/April 2017 examiner suggested improvement in the Veteran's condition, the observations and analysis within the March 2017 report appear to show his symptoms continued. Notably, the March 2017 examination report documents mild radiculopathy symptoms and records the Veteran's statement of worsening symptoms. A July 2017 private treatment record documents that the Veteran's condition was "stable but not improved." In other words, an improvement in the Veteran's ability to function under the ordinary conditions of life and work is not adequately demonstrated upon review of the March 2017 examination report and associated April 2017 addendum report, or by the other evidence of record.

Consequently, the Board finds that the reduction from 20 percent to noncompensable, or 0 percent, effective February 1, 2019, for left upper extremity radiculopathy, was improper. As such, the 20 percent disability rating for left upper extremity radiculopathy is restored. The benefit sought on appeal is granted.

Increased Rating

2. Entitlement to a disability evaluation in excess of 20 percent for left upper extremity radiculopathy from February 15, 2017 to February 18, 2020 is denied.

3. Entitlement to a disability rating in excess of 40 percent for left upper extremity radiculopathy from February 19, 2020, is denied.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27.

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased disability rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to 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.

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; see also Gilbert v. Der
erson v. West, 12 Vet. App. 119, 126 (1999).

Here, the Veteran's left upper extremity radiculopathy is evaluated under Diagnostic Code 8510. The Veteran is left-hand dominant, so the left upper extremity is the "major" extremity and right upper extremity is the "minor" extremity for the purpose of the regulations. See July 2020 Disability Benefits Questionnaire (DBQ).

Under Diagnostic Code 8510, mild incomplete paralysis is rated as 20 percent disabling for both the major and the minor extremities; moderate incomplete paralysis is rated as 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity; severe incomplete paralysis is rated as 50 percent disabling for the major extremity and as 40 percent disabling for the minor extremity.

Where there is a complete paralysis of the nerve with all of the shoulder and elbow movements lost or severely affected, but the hand and wrist movements are not affected, a 70 percent disability rating is assigned for the major extremity and a 60 percent disability rating is assigned for the minor extremity.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that disability ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124; see also Miller v. Shulkin, 28 Vet. App. 376 (2017).

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the disability rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; see also Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran has disagreed with the evaluation assigned to his left upper extremity radiculopathy. See November 2018 Notice of Disagreement. During his September 2022 Board hearing, the Veteran testified that his symptoms are "moderate to severe" and include numbness and tinging in his fingers, weakness, and pain that shoots up and down his left arm. The Veteran is competent to describe his symptoms, and the Board finds no reason to cast doubt upon the Veteran's statements in this regard. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).

The Veteran also testified that he did not believe the March 2017 examination report and associated April 2017 addendum report accurately reflected the severity of his disability because he continued to experience symptoms of his disability.

The Board recognizes that the March 2017 examination report and associated April 2017 addendum report are, indeed, of limited probative value due to inconsistencies between the two reports as the April 2017 addendum report concluded there was "no evidence of [...] radiculopathy," while the March 2017 examination report had indicated that the Veteran experienced "radicular pain or any other signs or symptoms due to radiculopathy" with mild paresthesias and/or dysesthesias and mild numbness in his left upper extremity. Of note, during his appointment, the Veteran informed the examiner that his condition had worsened. The examiner transcribed the Veteran's report: "He is most concerned because he has developed tingling and intermit[te]nt numbness in his thumbs[,] pointer [fingers,] and middle fingers, L>R [greater on the left side than on the right side]. He is concerned that
concluded there was "no evidence of [...] radiculopathy," while the March 2017 examination report had indicated that the Veteran experienced "radicular pain or any other signs or symptoms due to radiculopathy" with mild paresthesias and/or dysesthesias and mild numbness in his left upper extremity. Of note, during his appointment, the Veteran informed the examiner that his condition had worsened. The examiner transcribed the Veteran's report: "He is most concerned because he has developed tingling and intermit[te]nt numbness in his thumbs[,] pointer [fingers,] and middle fingers, L>R [greater on the left side than on the right side]. He is concerned that this may represent radiculopathy."

A July 2017 statement from the Veteran's physician, addressing the severity of his radiculopathy symptoms, is included in the claims file. She observed that the Veteran continued to experience cervical radiculopathy, diagnosed through both MRI and clinical examination. She stated that the Veteran's "condition is stable but not improved and his condition continues to cause him pain and limited activity," adding, "I suspect his condition will get worse as he ages."

The July 2020 examiner reported that the Veteran's condition had progressed/worsened, adding, "[h]e has constant pain in his neck with intermittent shooting pain down his arms with tingling and numbness." She reported dermatome (or, light touch) testing showed decreased sensation associated with the nerves originating from the C6-C8 region of the Veteran's spinal column. See July 2020 Disability Benefits Questionnaire. She reported the Veteran did not experience constant pain (may be excruciating at times) but did experience severe intermittent pain (usually dull), with severe paresthesias and/or dysesthesias and severe numbness in his left upper extremity. She indicated involvement of the C5/C6 nerve roots (upper radicular group). In assessing the severity of the Veteran's radiculopathy, as a whole however, the examiner reported that the Veteran's left upper extremity was best characterized as "mild," as opposed to "moderate" or "severe."

An August 2020 private treatment record is also of record. This statement describes the Veteran's worsening C5 radicular discomfort, accompanied by "some weakness of abduction" and pain and numbness that radiates down the biceps into the upper anterior forearm. The Veteran's physician continued: "This is dramatically exacerbated by cervical positioning, extension, or leftward deviation, it produces tingling and an electrical sensation shooting into the arm in a C5 distribution. He has known severe stenosis at C4-5 and C5-6, lesser stenosis at C6-7. He is service connected for the DDD [degenerative disc disease] in his neck and this represents a progression."

The Veteran submitted private chiropractor records, covering the period from February 2022 through May 2022, which consistently showed that the Veteran reported an average pain level of 4 out of 10 and a complaint of 7 out of 10 (it is not entirely clear to the Board what the term "complaint" encapsulates). These records showed varying pain levels from tolerable to moderately severe pain, associated with a variety of activities of daily living. The Veteran's condition was mostly noted to be stable with occasional improvement noted at different appointments in connection with the therapeutic exercises the Veteran was performing.

In consideration of the above evidence, for the period from February 15, 2017 to February 18, 2020, it is not factually ascertainable that the Veteran's left upper extremity is manifest by more than mild incomplete paralysis of the major extremity; for the period from February 19, 2020, it is also not factually ascertainable that the Veteran's left upper extremity is manifest by more than moderate incomplete paralysis of the major extremity. In this regard, the Board recognizes that the Veteran's symptoms are more than wholly sensory, as weakness associated with his left upper extremity radiculopathy has both been reported by the Veteran (during his September 2022 Board hearing) and documented by his private physician (in August 2020). Although the July 2020 examiner reported the Veteran experienced severe intermittent pain (usually dull), with severe paresthesias and/or dysesthesias and severe numbness in his left upper extremity she ultimately reported that the Veteran's left upper extremity was best characterized as "mild," as opposed to "moderate" or "severe." The Veteran's private chiropractic records covering the period from February 2022 through May 2022 more or less echo the findings of the July 2020 examiner.
associated with his left upper extremity radiculopathy has both been reported by the Veteran (during his September 2022 Board hearing) and documented by his private physician (in August 2020). Although the July 2020 examiner reported the Veteran experienced severe intermittent pain (usually dull), with severe paresthesias and/or dysesthesias and severe numbness in his left upper extremity she ultimately reported that the Veteran's left upper extremity was best characterized as "mild," as opposed to "moderate" or "severe." The Veteran's private chiropractic records covering the period from February 2022 through May 2022 more or less echo the findings of the July 2020 examiner. Indeed, the Veteran's chiropractic records consistently reported that his pain was a 4 out of 10 and ranged from tolerable to moderately severe, depending on the activity the Veteran was engaged in at the time, and the timeframe on which he was reporting.

A higher disability rating for complete paralysis is not warranted at any time during the period on appeal because the Veteran has not exhibited a complete paralysis of the nerve with all of the shoulder and elbow movements lost or severely affected.

Addressing the one-year look-back period prior to the February 2017 increased disability rating claim, a September 2016 private treatment record asserts that the Veteran was experiencing "mild pain, consistent with clinical findings" and that "[i]t is my determination that there is a worsening in the patient's condition." Although worsening was noted, given the description of "mild pain" it is not factually ascertainable that the Veteran's condition had worsened beyond the severity level (i.e., "mild") for which he was presently entitled to compensation. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "one-year look-back period").

Based on the foregoing, the evidence is persuasively against the assignment of a higher disability rating than that which has already been assigned, after accounting for the restoration of the Veteran's 20 percent evaluation for left upper extremity radiculopathy for the period from February 1, 2019 to February 18, 2020. As such, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. Lynch v. McDonough, 21 F4th 776, 781-82 (Fed. Cir. 2021).

Gregory Deemer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Hennessy

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.

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