Citation Nr: 0810818	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  05-14 039	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for 
peripheral neuropathy, left upper extremity.


REPRESENTATION

Appellant represented by:	Virginia Department of 
Veterans Services


ATTORNEY FOR THE BOARD

S. Layton, Associate Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from 
January 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2004 rating decision by the 
Columbia, South Carolina Regional Office (RO) of the 
Department of Veterans Affairs (VA).  Thereafter, the 
statement of the case was issued by the VARO located in 
Roanoke, Virginia.


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issues on appeal was obtained.

2.  Peripheral neuropathy of the left upper extremity is 
manifest by no more than mild symptoms and signs.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for 
peripheral neuropathy of the left upper extremity have not 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.102, 4.124a, Diagnostic Code 8516 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the RO.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the RO.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead be cured by issuance 
of a fully compliant notice, followed by readjudication of 
the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. 
Cir. 2006) (where notice was not provided prior to the RO's 
initial adjudication, this timing problem can be cured by the 
Board remanding for the issuance of a VCAA notice followed by 
readjudication of the claim by the RO) see also Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a 
fully compliant VCAA notification followed by readjudication 
of the claim, such as an SOC or SSOC, is sufficient to cure a 
timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial RO decision by way of a letter sent 
to the appellant in March 2005 that fully addressed all four 
notice elements.  The letter informed the appellant of what 
evidence was required to substantiate the claim and of the 
appellant's and VA's respective duties for obtaining 
evidence.  The appellant was also asked to submit evidence 
and/or information in his possession to the RO.  Although a 
notice letter was not sent before the initial RO decision in 
this matter, the Board finds that this error was not 
prejudicial to the appellant because the actions taken by VA 
after providing the notice have essentially cured the error 
in the timing of notice.  Not only has the appellant been 
afforded a meaningful opportunity to participate effectively 
in the processing of his claim and given ample time to 
respond, but the RO also readjudicated the case by way of a 
supplemental statement of the case issued in July 2006 after 
the notice was provided.  For these reasons, it is not 
prejudicial to the appellant for the Board to proceed to 
finally decide this appeal as the timing error did not affect 
the essential fairness of the adjudication.

During the pendency of this appeal, the Court in 
Dingess/Hartman found that the VCAA notice requirements 
applied to all elements of a claim.  An additional notice as 
to these matters was provided in March 2006.  The notice 
requirements pertinent to the issue addressed in this 
decision have been met and all identified and authorized 
records relevant to the matter have been requested or 
obtained.

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  Vazquez-Flores v. 
Peake, 22 Vet.App. 37 (2008).   Further, if the Diagnostic 
Code under which the claimant is rated contains criteria 
necessary for entitlement to a higher disability rating that 
would not be satisfied by the claimant demonstrating a 
noticeable worsening or increase in severity of the 
disability and the effect that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Id. 

Here, the notification requirements enumerated in Vazquez-
Flores have not been satisfied.  While correspondence from 
the RO dated in March 2005 satisfied many of the requirements 
of the VCAA, the letter did not inform the veteran that he 
needed to show the effect that the worsening of his symptoms 
had on his employment and daily life.  The letters also did 
not specifically describe the requirements of the applicable 
Diagnostic Codes.

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the 
United States Court of Appeals for the Federal Circuit held 
that any error by VA in providing the notice required by 38 
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and that once an error is identified as to any 
of the four notice elements the burden shifts to VA to 
demonstrate that the error was not prejudicial to the 
appellant.  The Federal Circuit stated that requiring an 
appellant to demonstrate prejudice as a result of any notice 
error is inconsistent with the purposes of both the VCAA and 
VA's uniquely pro-claimant benefits system.  

Instead, the Federal Circuit held in Sanders that all VCAA 
notice errors are presumed prejudicial and require reversal 
unless VA can show that the error did not affect the 
essential fairness of the adjudication.  To do this, VA must 
show that the purpose of the notice was not frustrated, such 
as by demonstrating:  (1) that any defect was cured by actual 
knowledge on the part of the claimant, see Vazquez-Flores v. 
Peake, 22 Vet.App. 37 (2008) ("Actual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrate an awareness of 
what was necessary to substantiate his or her claim.") 
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); 
(2) that a reasonable person could be expected to understand 
from the notice what was needed; or (3) that a benefit could 
not have been awarded as a matter of law.  Sanders, 487 F.3d 
at 889.  Additionally, consideration also should be given to 
"whether the post-adjudicatory notice and opportunity to 
develop the case that is provided during the extensive 
administrative appellate proceedings leading to the final 
Board decision and final Agency adjudication of the claim ... 
served to render any pre-adjudicatory section 5103(a) notice 
error non-prejudicial."  Vazquez-Flores v. Peake, 22 
Vet.App. 37 (2008).

In this case, the Board finds that the Vazquez-Flores v. 
Peake notice error did not affect the essential fairness of 
the adjudication because a reasonable person could have been 
expected to understand from the March 2005 letter what the 
evidence needed to show to grant the benefit sought.  The 
applicable diagnostic codes to the claim do not contain a 
requirement for specific test results in order to grant an 
increased rating.  The diagnostic code requirements 
applicable to the claims in this appeal were generally 
enumerated in the March 2005 letter, and thus it is not 
prejudicial to the appellant for the Board to proceed to 
finally decide this appeal as the notice error did not affect 
the essential fairness of the adjudication.

Further attempts to obtain additional evidence would be 
futile.  The Board finds the available medical evidence is 
sufficient for an adequate determination.  There has been 
substantial compliance with all pertinent VA law and 
regulations and to move forward with the claim would not 
cause any prejudice to the appellant.

Law and Regulations

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  The percentage ratings 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 their residual conditions in civil occupations.  
38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007).

In order to evaluate the level of disability and any changes 
in condition, it is necessary to consider the complete 
medical history of the veteran's condition.  Schafrath v. 
Derwinski, 1 Vet.App. 589, 594 (1991).  However, where an 
increase in the level of a service-connected disability is at 
issue, the primary concern is the present level of 
disability.  Francisco v. Brown, 7 Vet.App. 55 (1994).  
Nevertheless, the Board acknowledges that a claimant may 
experience multiple distinct degrees of disability that might 
result in different levels of compensation from the time the 
increased rating claim was filed until a final decision is 
made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  
Therefore, the analysis in this decision is undertaken with 
consideration of the possibility that different ratings may 
be warranted for different time periods.

It is the defined and consistently applied policy of the 
Department of Veterans Affairs to administer the law under a 
broad interpretation, consistent, however, with the facts 
shown in every case.  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 claimant.  38 C.F.R. § 4.3 (2007).  
Where there is a question as to which of two evaluations 
shall 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 (2007).

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 concern.  
Although a rating specialist is directed to review the 
recorded history of a disability in order to make a more 
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do 
not give past medical reports precedence over current 
findings.  Francisco v. Brown, 7 Vet.App. 55 (1994).  The 
Court has held that where the determinative issue involves 
medical causation or a medical diagnosis, competent medical 
evidence is required.  Grottveit v. Brown, 5 Vet. App. 91 
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 
(1992).  VA is free to favor one medical opinion over another 
provided it offers an adequate basis for doing so.  See Owens 
v. Brown, 7 Vet. App. 429 (1995).

Disability involving a neurological disorder is ordinarily to 
be rated in proportion to the impairment of motor, sensory, 
or mental function.  When the involvement is wholly sensory, 
the rating should be for the mild, or, at most, the moderate 
degree.  38 C.F.R. §§ 4.120, 4.124a (2007).



The Ulnar Nerve
852
0
Paralysis of:
Rating


Majo
r
Mino
r

Complete; the "griffin claw" deformity, due 
to flexor contraction of right and little 
fingers, atrophy very marked in dorsal 
interspace and thenar and hypothenar 
eminences; loss of extension of right and 
little fingers cannot spread the fingers (or 
reverse), cannot adduct the thumb; flexion of 
wrist weakened
70
60

Incomplete:

  Severe
40
30

  Moderate
30
20

  Mild
10
10
38 C.F.R. § 4.124a, Diagnostic Code 8516 (2007).

The term "incomplete paralysis" indicates a degree of lost 
or impaired function substantially less than the type 
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 rating should be for the mild, or at most, the 
moderate degree.  The ratings for the peripheral nerves are 
for unilateral involvement; when bilateral the rating should 
include the application of the bilateral factor.  38 C.F.R. 
§ 4.124a (2007).

Peripheral Neuropathy of the Left Upper Extremity

The veteran contends that his service-connected peripheral 
neuropathy of the left upper extremity warrants a rating in 
excess of 10 percent disabling.  Service connection for 
peripheral neuropathy was originally awarded in a 
September 2002 rating decision and assigned a 10 percent 
rating.  The RO determined that the veteran's peripheral 
neuropathy was secondary to service-connected diabetes 
mellitus, type II.

On VA examination in August 2002, the veteran complained of 
aching, pain, and numbness in his left arm.  He felt that if 
he applied pressure to his left elbow over an extended period 
of time his symptoms worsened.  He stated that an 
electromyography (EMG) from November 2000 revealed some 
axonal injury to the left ulnar nerve at or above the elbow.  
He also indicated that his symptoms were not progressing.

On objective examination, the examiner found a full range of 
motion of the left hand.  He noted no atrophy involving the 
thenar or hypothenar eminences of the left hand.  No 
intrinsic wasting or weakness of muscle function was 
observed.  A diagnosis of symptoms of cubital tunnel syndrome 
or ulnar nerve neuropathy and superimposed peripheral 
neuropathy secondary to diabetes was listed.  The examiner 
opined that the veteran's condition was more than likely 
related to his diabetes and compressive neuropathy symptoms 
than it was due to shrapnel injuries of the arm.

During a March 2004 VA examination, the veteran said he 
experienced left arm pain and left little finger numbness.  
He also described a 40-year history of alcohol abuse.  The 
examiner noted that muscle strength in the upper extremities 
was 5/5 bilaterally.  Some decreased sensation at the left 
little finger was observed.  He had a negative medial 
compression test at the wrists bilaterally and a negative 
ulnar compression test of the elbows bilaterally.  His deep 
tendon reflexes were symmetrical in the upper extremities.  
Bilateral peripheral neuropathy was listed as a diagnosis.  
The examiner said that it was possible that the diabetes 
mellitus caused the peripheral neuropathy, but it was also as 
likely as not possible that alcohol abuse had contributed to 
the disorder.  The examiner also stated that the numbness in 
the left little finger was as likely as not secondary to the 
diabetes mellitus.

In his notice of disagreement received in August 2004, the 
veteran indicated that he had lost use of his left little 
finger and ring finger.  He reported that they were numb all 
of the time, and he experience pain and a tingling sensation 
in both fingers.  He noted that the pain was concentrated 
below the elbow region.  He observed that his arm would cramp 
and pull his little finger toward the palm of his hand.

On VA examination in March 2005, the veteran, who was right-
handed, reported pain and paresthesias involving his left 
forearm and into his 4th and 5th fingers.  He denied any 
flares that would lead to loss of function of the fingers.  
He said that his numbness in his left fourth and fifth 
fingers was chronic.  It was noted that the condition did not 
interfere with his daily activities.  He related that his 
symptoms were slightly worse than they were three years 
previously.

The physician stated that the veteran had a full range of 
motion of the left hand.  No atrophy involving the thenar or 
hypothenar eminences of the left hand was observed.  No 
intrinsic wasting or weakness of muscle function of the left 
hand was noted.  Range of motion of the left wrist, left 
elbow and all fingers was within normal limits.  It was noted 
that sensation was impaired in the ulnar distribution on the 
fingers of the left hand.  The examiner stated that the 
veteran had symptoms of ulnar nerve neuropathy, and it was at 
least as likely as not that the veteran's injuries sustained 
in Vietnam were related and had lead to worsening of the 
ulnar neuropathy.  The examiner also indicated that the 
veteran had a superimposed peripheral neuropathy of his hand 
in the left ulnar distribution secondary to his diabetes.  It 
was specifically noted that the veteran had no change in 
range of motion or pain in any of the joints or muscle groups 
involved with repetitive motion, and there was no 
fatigability noted on the active or passive range of motions.

Based on the evidence of record, the Board finds that a 
rating in excess of 10 percent is not warranted at any time 
during the appeal period for peripheral neuropathy of the 
left upper extremity.  There has been no objective 
manifestation of moderate incomplete paralysis of the ulnar 
nerve.  38 C.F.R. § 4.124a.

In this matter, the Board finds the VA exams of August 2002, 
March 2004, and March 2005 persuasive.  The examiners 
indicated that they reviewed the claims file, and they 
commented on the evidence of the veteran's prior medical 
history.  They gave the veteran full examinations, 
interviewed the veteran, and provided adequate reasons and 
bases for their opinions.  Based on their reports, the 
symptomatology of the veteran's peripheral neuropathy of the 
left upper extremity is best described as mild.

The Board has carefully considered the veteran's personal 
report of his symptoms and finds them competent regarding 
what the veteran is able to experience through his senses.  
However, while the veteran is competent to report what comes 
to him through his senses, he does not have medical 
expertise.  See Layno v. Brown, 6 Vet. App. 465 (1994).  As 
the veteran does not have medical expertise, the Board finds 
his statements to be less persuasive than the August 2002, 
March 2004, and March 2005 reports from the VA examiners.

The Board has chosen to characterize the veteran's disorder 
under Diagnostic Code 8516 as the March 2005 VA examiner 
related the veteran's symptoms specifically to the ulnar 
nerve.  The Board has also considered rating the veteran's 
service-connected disability under a different Diagnostic 
Code, but finds none that may be assigned on the facts of 
record or which would avail the veteran of a higher 
disability rating.  The assignment of a particular Diagnostic 
Code is "completely dependent on the facts of a particular 
case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One 
Diagnostic Code may be more appropriate than another based on 
such factors as an individual's relevant medical history, the 
current diagnosis and demonstrated symptomatology.  Any 
change in a Diagnostic Code by a VA adjudicator must be 
specifically explained.  See Pernorio v. Derwinski, 2 Vet. 
App. 625, 629 (1992).  

Throughout the appeal period there has been no objective 
medical evidence of: mild incomplete paralysis of the 
musculospiral nerve (diagnostic code 8514); moderate 
incomplete paralysis of the median nerve (diagnostic code 
8515); severe incomplete paralysis of the musculocutaneous 
nerve (diagnostic code 8517); severe incomplete paralysis of 
the circumflex nerve (diagnostic code 8518); or severe 
incomplete paralysis of the long thoracic nerve (diagnostic 
code 8519).  38 C.F.R. § 4.124a.

The Board further finds there is no evidence of any unusual 
or exceptional circumstances, such as marked interference 
with employment or frequent periods of hospitalization 
related to this service-connected disorder that would take 
the veteran's case outside the norm so as to warrant an 
extraschedular rating.  The veteran's service-connected 
disorder is adequately rated under the available schedular 
criteria.  The objective findings of physical impairment are 
well documented.  However, pain and some degree of 
interference with employment are taken into account within 
the regular evaluation criteria.  Therefore, referral by the 
RO to the Chief Benefits Director of VA's Compensation and 
Pension Service, under 38 C.F.R. § 3.321, is not warranted.  
See Bagwell v. Brown, 9 Vet. App. 337 (1996).

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the claim.


ORDER

Entitlement to an evaluation in excess of 10 percent for 
peripheral neuropathy, left upper extremity is denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs