Citation Nr: 18160458
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-62 697
DATE:	December 27, 2018
ORDER
The reduction of the evaluation from 20 percent for radiculopathy of the right upper extremity to a noncompensable rating, effective February 10, 2015, was proper.
The reduction of the evaluation from 30 percent for radiculopathy of the left upper extremity to a noncompensable rating, effective February 10, 2015, was proper.
From February 10, 2015 to August 21, 2016, entitlement to an initial compensable rating for radiculopathy of the right upper extremity is denied.
From February 10, 2015 to August 21, 2016, entitlement to an initial compensable rating for radiculopathy of the left upper extremity is denied.
From August 22, 2016, entitlement to a rating in excess of 40 percent for radiculopathy of the right upper extremity is denied. 
From August 22, 2016, entitlement to a rating in excess of 20 percent for radiculopathy of the left upper extremity is denied. 
FINDINGS OF FACT
1. The 20 percent rating assigned for radiculopathy of the right upper extremity and 30 percent rating assigned for radiculopathy of the left upper extremity were in effect for less than five years, and at the time of the reduction the evidence established improvement in radiculopathy of the bilateral upper extremities under ordinary conditions of life. 
2. From February 10, 2015 to August 21, 2016, the Veteran’s radiculopathy of the bilateral upper extremities is manifested by no symptoms of incomplete or complete paralysis.
3. From August 22, 2016, the Veteran’s radiculopathy of the right upper extremity is manifested by symptoms of moderate incomplete paralysis and the Veteran’s radiculopathy of the left upper extremity is manifested by symptoms of mild incomplete paralysis. 
CONCLUSIONS OF LAW
1. The June 2015 reduction of the 20 percent rating for radiculopathy of the right upper extremity and 30 percent rating for radiculopathy of the left upper extremity to a noncompensable rating for the Veteran’s service connected radiculopathy of the bilateral upper extremities was proper.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a Diagnostic Code 8710 (2018).
2. From February 10, 2015 to August 21, 2016, the criteria for a compensable rating for radiculopathy of the bilateral upper extremities have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8710 (2018).  
3. From August 22, 2016, the criteria for a rating in excess of 40 percent for radiculopathy of the right upper extremity and 20 percent for radiculopathy of the left upper extremity have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8710 (2018).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service with honorable discharge from June 1996 to March 22, 2002.  The Veteran’s military service for the period of March 22, 2002 through February 1, 2008 is not honorable for VA purposes.  See May 2015 Correspondence. 
This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In this case, the Veteran filed his initial claim in November 2012 for entitlement to service connection for radiculopathy of the bilateral upper extremities.  See November 2012 VA 21-526 Veterans Application for Compensation or Pension.  Service connection was granted for radiculopathy of the bilateral upper extremities in a November 2013 rating decision with a disability rating of 30 percent for the left upper extremity and 20 percent for the right upper extremity under Diagnostic Code 8712.  The Veteran filed a claim for an increased rating in September 2014, which led to this appeal.  In a June 2015 rating decision, the ratings assigned were decreased to a noncompensable rating effective February 10, 2015.  See June 2015 Rating Decision – Narrative.  The Veteran appealed.  Then, in an August 2016 rating decision, the RO increased the ratings to 20 percent disabling for the left upper extremity and 40 percent disabling for the right upper extremity effective August 22, 2016.  See August 2016 Rating Decision – Narrative.  The service-connected disabilities were rated under Diagnostic Code 8712 (neuralgia of the lower radicular group) but should have been rated under Diagnostic Code 8710 (upper radicular group).  The Board finds that this is a harmless error as the criteria for both Diagnostic Codes are identical.
Reductions
The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines.  When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  Here, in this case, the reduction did not affect the combined disability evaluation for compensation which remained at 60 percent.  See June 2015 Rating Decision – Narrative.  As there was no reduction of compensation payments, no further notice was required to the Veteran.  
The Board must now address whether the competent evidence warranted a reduction in the assigned rating.  In considering the propriety of a reduction, the Board will consider the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the purpose of determining whether the condition has demonstrated actual improvement.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).  Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.  38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  38 C.F.R. § 3.344(c).  In this case, the provisions of 38 C.F.R. § 3.344(a) are not applicable, as the disability rating for the Veteran’s radiculopathy of the bilateral extremities had been in effect for less than 5 years.
Following a review of the evidence, the Board finds that the reduction in the rating for radiculopathy of the bilateral upper extremities from 20 percent for radiculopathy of the right upper extremity and 30 percent for radiculopathy of the left upper extremity to 0 percent, effective February 10, 2015, was proper.  
The RO assigned a 20 percent rating for radiculopathy of the right upper extremity and 30 percent rating for radiculopathy of the left upper extremity based on a May 2013 examination report that showed the Veteran exhibited mild radiculopathy of the right upper extremity and moderate radiculopathy in the left upper extremity.  These findings were consistent with the treatment records that showed that the Veteran complained of radicular pain and intermittent tingling in the left upper extremity.  See October 2013 CAPRI.
In October 2014, a VA provider detected no objective evidence of cervical radiculopathy.
Then in February 2015 VA examination, the Veteran exhibited no radicular pain, or signs or symptoms due to radiculopathy.  This finding was consistent with the treatment records that showed no objective evidence of radiculopathy in the July 2014 and September 2014 electromyography (EMG) study.  See January 2015 CAPRI, February 2015 CAPRI and August 2016 CAPRI. 
Based on the foregoing findings, the RO reduced the Veteran’s rating for his radiculopathy of the bilateral upper extremities from 20 percent for radiculopathy of the right upper extremity and 30 percent for radiculopathy of the left upper extremity to 0 percent in the June 2015 rating decision. 
The Board concludes that the RO’s reduction in rating for radiculopathy of the bilateral upper extremities was proper, as the preponderance of the evidence at the time of the reduction demonstrated that the Veteran’s radiculopathy of the bilateral upper extremities had improved, to include improvement in the ability to function under the ordinary conditions of life and work.  Comparison of the May 2013 to the February 2015 VA examination findings show a clear and marked improvement, with no objective evidence of radiculopathy in the bilateral upper extremities.  As such, the Board finds that the preponderance of the evidence supports the reduction in the evaluation assigned for the radiculopathy of the bilateral upper extremities. 
Increased Rating
Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  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 civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Higher evaluations may be assigned for separate periods based on the facts found during the appeal period.  Hart v. Nicholson, 21 Vet. App. 505, 509 (2007).  See also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  This practice is known as staged ratings.  Id.  
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.
Diagnostic Code 8710 for neuralgia of the upper radicular group provides that mild incomplete paralysis is rated 20 percent disabling for both the major and minor side.  See 38 C.F.R. § 4.124a, Diagnostic Code 8712.  A 40 percent rating is assigned for moderate incomplete paralysis of the major side and 30 percent for the minor side.  A 50 percent rating is assigned for severe incomplete paralysis on the major side and 40 percent for the minor side.  A 70 percent rating is assigned for complete paralysis on the major side and 60 percent for the minor side.  The records show that the Veteran is dominant in the right hand.  See June 2017 C&P Exam.
The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.
A review of the records shows that the Veteran was afforded VA examinations in August 2016 and June 2017.  
In the August 2016 VA examination, the Veteran alleged that the radiculopathy of the bilateral upper extremities worsened.  The Veteran reported that he would have tightness and bilateral shooting pains intermittently throughout the day, sharp in nature and not constant.  The Veteran denied numbness or tingling.  On examination, the Veteran again exhibited normal neurological findings such as normal muscle strength, reflexes, and sensation.  However, the Veteran exhibited radicular pain of moderate severity in the right upper extremity and mild intermittent pain in the left upper extremity.  There were no other signs or symptoms of radiculopathy.  The Board notes that the treatment records in 2016 shows that the Veteran has radiculopathy in the bilateral upper extremities.  See July 2016 CAPRI and May 2017 CAPRI.
Then in the June 2017 VA examination, the Veteran complained of worsening pain since the August 2016 examination.  The Veteran stated that he has pain, numbness, and tingling from his neck to his bilateral hands.  On examination, the Veteran exhibited normal neurological findings, such as normal muscle strength, reflexes, and sensation.  The examiner noted that the Veteran has mild radicular pain, paresthesias and/or dysesthesias, and numbness in the bilateral upper extremities by history only without objective findings on exam.  There were no other neurological abnormalities related to the cervical spine.  


February 10, 2015 to August 21, 2016
Based on the evidence of record, the Board finds that the evidence weighs against assigning a compensable rating for radiculopathy of the bilateral upper extremities.  The records as noted above show that the Veteran exhibited no radicular pain or any other signs or symptoms due to radiculopathy.  See February 2015 C&P Exam.  Further, the treatment records show no objective evidence of radiculopathy as the July 2014 and September 2014 EMG studies revealed no evidence of C5-C6 radiculopathy.  See January 2015 CAPRI, February 2015 CAPRI and August 2016 CAPRI.  As such, the Board finds that the Veteran is not entitled to a compensable rating from February 10, 2015 to August 21, 2016. 
August 22, 2016
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Based on the evidence of record, the Board finds that the evidence weighs against assigning a rating in excess of 40 percent for radiculopathy of the right upper extremity and 20 percent for radiculopathy of the left upper extremity from August 22, 2016 to the present.  As noted above, the Veteran at most exhibited radicular pain of moderate severity in the right upper extremity and mild intermittent pain in the left upper extremity.  See August 2016 C&P Exam.  Subsequent VA examination in June 2017 showed improvement as the Veteran exhibited mild radiculopathy in the bilateral upper extremity.  See June 2017 C&P Exam.  Accordingly, there is no evidence in the records to warrant the Veteran a rating in excess of 40 percent for radiculopathy of the right upper extremity and 20 percent for radiculopathy of the left upper extremity as his condition appeared to have improved.
 
S. HENEKS 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. Noh, Associate Counsel 

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