PARALYSIS OF THE UPPER RADICULAR GROUP (FIFTH AND SIXTH CERVICALS)

Summary

The Veteran, who served in the U.S. Air Force from June 2017 to February 2022, appeals the denial of increased ratings for cervical radiculopathy, lumbosacral strain, and migraine headaches, as well as the denial of service connection for a psychiatric disability. The Board denied increased ratings for cervical radiculopathy and lumbosacral strain, finding the evidence did not meet the criteria for ratings higher than 40% and 10% respectively. The denial of an increased rating for migraine headaches was affirmed, as the Veteran had already received the maximum 50% schedular rating. The Board remanded the claim for service connection for a psychiatric disability, noting that the Veteran submitted new and relevant evidence of an in-service sexual assault after the initial denial, and the Regional Office improperly rejected the claim based on the filing form, contrary to recent court precedent. The Board also remanded the claim for Total Disability based on Individual Unemployability (TDIU) as inextricably intertwined with the psychiatric disability claim, as TDIU may be enhanced if the psychiatric condition is granted service connection. The Veteran's service records were reviewed, and the Board found the examinations adequate for adjudication purposes, despite some noted inconsistencies in passive range of motion testing.

Rationale

VA examinations indicated moderate incomplete paralysis.; Board found evidence did not meet criteria for >40% rating.; Examiner's conclusion of moderate incomplete paralysis was based on pain and paresthesias.

Full Decision Text

Citation Nr: A26040031
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 250328-529251
DATE: April 29, 2026

ORDER

Entitlement to a rating in excess of 40 percent for cervical radiculopathy, right upper extremity, is denied.

Entitlement to a rating in excess of 10 percent for lumbosacral strain is denied.

Entitlement to a rating in excess of 50 percent for migraine headaches is denied.

Readjudication is granted for the claim for service connection for a psychiatric disability.

REMANDED

Entitlement to service connection for a psychiatric disability is remanded.

Entitlement to a total disability rating due to individual unemployability is remanded.

FINDINGS OF FACT

1. The Veteran's cervical radiculopathy, right upper extremity, manifests in no more than moderate incomplete paralysis of the major extremity.

2. The Veteran's lumbosacral strain manifests, at worst, in flexion limited to 75 degrees, combined range of motion limited to 185 degrees, and in localized tenderness not causing abnormal gait or abnormal spinal contour.

3. The Veteran has already received the maximum schedular rating for migraine headaches for the entire period on appeal.

4. VA received new and relevant evidence regarding service connection for a psychiatric disorder on December 10, 2024.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 40 percent for cervical radiculopathy, 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 8510.

2. The criteria for a rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

3. The criteria for an increased rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.

4. The criteria for readjudication of the claim for service connection for a psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(d), 3.2501(a), 20.302.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from June 2017 to February 2022. 

This matter stems from a December 10, 2024 claim for benefits filed by the Veteran. A regional office (RO) of the Department of Veterans Affairs (VA) rejected part of that claim as improperly filed in a March 10, 2025 notification letter, and adjudicated the remaining portions of the claim in a March 2025 rating decision. Both the March 2025 rating decision and the RO's rejection of part of the claim have been appealed to the Board of Veterans' Appeals (Board) in this matter.

In the March 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims for service connection for a psychiatric disorder and for individual unemployability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(
 the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims for service connection for a psychiatric disorder and for individual unemployability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

Increased Ratings

Entitlement to a rating in excess of 40 percent for cervical radiculopathy, right upper extremity, is denied.

Disability evaluations are determined by the application of the facts in evidence to the VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Neurological conditions are rated under 38 C.F.R. § 4.124a, which contains several tables providing rating criteria for different categories of conditions. Relevant here, the table "Diseases of the Peripheral Nerves" provides rating criteria for neuralgia, neuritis, and paralysis of each peripheral nerve.

Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, and is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123.

Neuralgia is characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, and is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124.

The rating criteria for each of the nerves listed in the table, "Diseases of the Peripheral Nerves," contain subjective terms of degree such as "mild," "moderate," and "severe," which the Board must define when adjudicating individual cases. Because the dictionary definitions of these terms "do little to explain the Board's understanding of these terms and do not 'disclos[e] what benchmark [the Board] used to reach [its] conclusion,'" the Board will not herein rely on those definitions. See Casey v. McDonough, No. 21-7569, 2023 U.S. App. Vet. Claims LEXIS 98, *5 (Jan. 24, 2023) (quoting Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018)); see also Bethea v. Derwinski, 2 Vet. App. 252, 242 (1992) (unpublished decisions may be relied upon for any persuasiveness or reasoning they contain). 

While 38 C.F.R. §§ 4.123 and 4.124 are "helpful in framing the analysis, [they] are not alone sufficient to explain the Board's decision absent an articulated connection to specific evidence," because these regulations leave gaps in defining the relevant terms. Lemon v. McDonough, No. 21-3949, 2022 U.S. App. Vet. Claims LEXIS 1998, *7 (Dec. 16, 2022).

The Board therefore takes guidance from VA's M21-1 adjudication manual. Although not binding on the Board, its provisions provide useful guidance on the evaluation of conditions of the peripheral nerves and the Board must therefore address its guidance. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The M21-1 manual describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." M21-1, Part V, sbpt. Iii, ch. 12, sec. A.2.c. Moderate incomplete paralysis, per the M21-1, should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. M21-1 examples of a moderate disability include "
 the evaluation of conditions of the peripheral nerves and the Board must therefore address its guidance. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The M21-1 manual describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." M21-1, Part V, sbpt. Iii, ch. 12, sec. A.2.c. Moderate incomplete paralysis, per the M21-1, should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. M21-1 examples of a moderate disability include "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate." Id. The M21-1 manual provides that a moderately severe evaluation is available when there is "motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a higher level of limitation or disability." Id. Atrophy may, but need not, be present for a moderately severe rating.

In discussing severe, incomplete paralysis, the M21-1 manual indicates, "In general expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases." Id. Moreover, "even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in case of complete paralysis of the nerve." Id. Further, "neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve...." Id.

Although not binding on the Board, the Board finds these criteria to be persuasive and will apply them in this decision.

The Veteran's cervical radiculopathy of the right upper extremity is rated under DC 8510, for paralysis of the upper radicular group (fifth and sixth cervicals). The Veteran is right-handed, therefore the major rating criteria apply. See February 2023 VA Peripheral Nerve Conditions DBQ. DC 8510's major rating criteria authorize a 20 percent rating for mild incomplete paralysis, a 40 percent rating for moderate incomplete paralysis, a 50 percent rating for severe incomplete paralysis, and a 70 percent rating for complete paralysis.

The Veteran attended a February 2023 VA peripheral nerve examination. The examiner endorsed moderate intermittent pain and paresthesias/dysesthesias of the upper right extremity, with all other findings being normal. Based on these findings, the examiner concluded that the Veteran's disability is caused by moderate incomplete paralysis of the right upper radicular group.

The Veteran also attended a March 2025 VA peripheral nerve examination. The examiner endorsed moderate constant pain and paresthesias/dysesthesias of the upper right extremity. For muscle strength testing, the examiner endorsed 4/5 (indicating active movement against some resistance) findings for right wrist flexion and extension, and right hand grip and pinch. All other findings were normal. Based on these findings, the examiner concluded that the Veteran's disability is caused by mild incomplete paralysis of the right upper radicular group.

The evidence of record persuasively shows that the Veteran does not meet the criteria for a rating higher than 40 percent. Therefore, entitlement to a rating in excess of 40 percent for cervical radiculopathy, right upper extremity, is denied.

Entitlement to a rating in excess of 10 percent for lumbosacral strain is denied.

Disabilities of the spine (other than intervertebral disc syndrome) are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), found at 38 C.F.R. § 4.71a.

Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees;
 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 

A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula.

The IVDS Formula assigns ratings based on the cumulative length of incapacitating episodes within a 12-month period. For the purpose of rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a , IVDS Rating Formula, Note (1).

The Veteran's lumbosacral strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which directs VA to assign a rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) also published in § 4.71a. Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula.

The Veteran attended a February 2023 VA spine examination. The examiner noted full range of motion in all directions across all forms of testing, but noted evidence of pain on extension during initial testing, weight-bearing testing, and active-motion testing. The examiner concluded that this pain did not cause functional loss. The examiner further noted that the Veteran experiences flare-ups, but does not experience functional loss as a result of these flare-ups. The Board notes that the examiner did not perform passive range of motion testing, "as it is not feasible to do this in a safe and reasonable manner." The examiner did not specify why it was not safe and reasonable, but the Board notes that VA often receives examination reports that discuss the results of passive lumbar spine range of motion testing. If the examiner found some reason that testing was not safe in the Veteran's case specifically, that reason should have been noted in the examination report. The Board finds that the unexplained lack of passive range of motion testing renders the February 2023 examination to be inadequate for adjudication purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016).

The Veteran attended another VA examination in March 2025. Initial range of motion testing revealed forward flexion limited to 80 degrees, and combined range of motion limited to 215 degrees. Based on information provided by the Veteran, the
, but the Board notes that VA often receives examination reports that discuss the results of passive lumbar spine range of motion testing. If the examiner found some reason that testing was not safe in the Veteran's case specifically, that reason should have been noted in the examination report. The Board finds that the unexplained lack of passive range of motion testing renders the February 2023 examination to be inadequate for adjudication purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016).

The Veteran attended another VA examination in March 2025. Initial range of motion testing revealed forward flexion limited to 80 degrees, and combined range of motion limited to 215 degrees. Based on information provided by the Veteran, the examiner concluded after repetitive use over time, or during flare-ups, the Veteran's extension would be limited to 75 degrees, and combined range of motion would be limited to 185 degrees. The examiner noted localized tenderness, but did not endorse abnormal gait or abnormal spinal contour.

Like the February 2023 examiner, the March 2025 examiner did not perform passive range of motion testing. The examiner indicated that such testing was medically contraindicated as it could cause the Veteran severe pain or further injury. The Board finds this reason acceptable, and finds the lack of passive range of motion testing in the March 2025 examination to be consistent with an adequate examination under the circumstances.

The Board's review of the record shows no other evidence that speaks to the rating criteria under the General Formula. This evidence persuasively shows that the Veteran does not meet the criteria for a rating higher than 10 percent under the General Formula. Therefore, entitlement to a rating in excess of 10 percent for lumbosacral strain is denied.

Entitlement to a rating in excess of 50 percent for migraine headaches is denied.

The Veteran's migraine headaches are rated under 38 C.F.R. § 4.124a, DC 8100, which authorizes a maximum schedular rating of 50 percent. This matter stems from a December 10, 2024 claim for an increased rating. The Veteran has been granted a 50 percent rating effective December 10, 2024, the date she filed her claim. Because no higher schedular rating is available for the period on appeal, entitlement to an increased rating for migraine headaches is denied.

New and relevant evidence has been received regarding entitlement to service connection for a psychiatric disability.

The Board's discussion of this issue is found below, in the section titled "Reasons for Remand."

REASONS FOR REMAND

Entitlement to service connection for a psychiatric disability is remanded. 

The Veteran filed a claim for service connection for a psychiatric disability on June 2, 2023. VA denied that claim in an October 2023 rating decision. The Veteran did not appeal that decision within one year of the date it issued, and it became final.

The Veteran filed a new claim on December 10, 2024, by submitting VA Form 21-526EZ. In addition to the disabilities discussed above, she again sought service connection for a psychiatric disability. She enclosed written statements regarding her in-service sexual assault, which constitutes new and relevant evidence.

The RO rejected the Veteran's new claim on March 10, 2025, issuing notice to the Veteran stating that review of previously-denied claims must be filed on some form other than VA Form 21-526EZ. In part, this notice stated that if the Veteran wished to file a supplemental claim, that claim must be filed on VA Form 20-0995.

The RO's rejection of the Veteran's claim constitutes an appealable decision. The Veteran filed this appeal within one year of the date VA rejected her new claim, therefore the issue of service connection for a psychiatric disability is before the Board at this time.

Shortly after the RO rejected the Veteran's claim for being filed on the incorrect form, the United States Court of Appeals for Veterans Claims (Court) issued a decision stating: "while a supplemental claim needs to be filed on a form prescribed by the Secretary, it need not be filed on [VA Form 20-0995]." Chisholm v. Collins, 38 Vet. App. 140, 150 (2025). 

The Board therefore finds that the Veteran's December 10, 2024 claim, which was submitted with new and relevant evidence, constitutes a supplemental claim for service connection for a psychiatric disorder. The RO's rejection of that claim is inconsistent with the Court's holding in Chisholm. Therefore, the claim must be remanded to the RO for adjudication on the merits in the first instance.

Entitlement to a total disability rating due to individual unemployability is remanded.

The Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) in her
-0995]." Chisholm v. Collins, 38 Vet. App. 140, 150 (2025). 

The Board therefore finds that the Veteran's December 10, 2024 claim, which was submitted with new and relevant evidence, constitutes a supplemental claim for service connection for a psychiatric disorder. The RO's rejection of that claim is inconsistent with the Court's holding in Chisholm. Therefore, the claim must be remanded to the RO for adjudication on the merits in the first instance.

Entitlement to a total disability rating due to individual unemployability is remanded.

The Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) in her appeals for increased ratings for right upper extremity cervical radiculopathy, lumbosacral strain, and migraine headaches. See March 2025 VA Form 10182. Although the Board has disposed of the appeals for increased schedular ratings above, the Board notes that the RO has not adjudicated entitlement to TDIU in the first instance. The Board notes that entitlement to TDIU was raised by the record before the RO, because part of the criteria for a 50 percent rating for migraine headaches is that those headaches are "productive of severe economic inadaptability."

TDIU is not a separate claim for benefits, but rather a separate theory by which Veterans can receive the appropriate rating for their underlying disabilities. Therefore, the RO's failure to address TDIU would not inherently prevent the Board from addressing it in the first instance. However, the Board notes that the Veteran's claim for TDIU may be enhanced if her claim for service connection for a psychiatric disability is granted on remand. Therefore, the Board will remand the claim for TDIU as inextricably intertwined with that claim. 

The matters are REMANDED for the following action:

1. Accept the Veteran's December 10, 2024 claim as a supplemental claim for service connection for a psychiatric disorder. Adjudicate the claim on the merits.

2. Adjudicate entitlement to a total disability rating based on individual unemployability. 

 

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sparks, Robert S.

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.