Citation Nr: 0813296 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-28 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for service-connected neuropathy of the right (major) hand, currently rated 30 percent disabling. 2. Entitlement to an increased rating for service-connected neuropathy of the left hand, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from February 1966 to January 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). The veteran requested a Board hearing at the RO in August 2005. In December 2007, he withdrew his request for such hearing. FINDINGS OF FACT 1. The veteran is right handed. 2. The veteran's neuropathy of the right (major) hand is manifested primarily by complaints of numbness and pain, with sensory and motor loss. It is not productive of more than moderate incomplete medial nerve paralysis. 3. The veteran's neuropathy of the left hand is manifested primarily by complaints of numbness and pain, with sensory and motor loss. It is not productive of more than moderate incomplete medial nerve paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent disability rating for neuropathy of the right (major) hand have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2007). 2. The criteria for a disability rating greater than 20 percent disability rating for neuropathy of the left hand have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). This was not accomplished as the veteran received notice relating to assignment of an increased rating in April 2005 and March 2006. The notices did not adequately discuss the criteria for an increased rating, thus VA's duty to notify him of the information and evidence necessary to substantiate the claim has not been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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 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. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Requiring an appellant to demonstrate prejudice because of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Id. Instead, all notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. Id. 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; (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. Id. Some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the veteran was provided a statement of the case, and any notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Id., Vazquez-Flores, supra. As both actual knowledge of the veteran's procedural rights, and the evidence necessary to substantiate the claims, have been demonstrated and he, and those acting on his behalf, have had a meaningful opportunity to participate in the development of his claims, no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. Any defect with regard to the timing or content of the notice to the appellant is harmless because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding entitlement to an earlier effective date for the disabilities, the veteran filed a timely notice of disagreement for an earlier effective date. In October 2006, the RO issued a statement of the case as to this issue, but no substantive appeal was received from the veteran. See 38 C.F.R. §§ 20.200, 20.302(c). Thus, it is final. Absent clear and unmistakable error in the rating decision (which he does not allege), the veteran is bound by that rating decision as to the effective date assigned. See 38 C.F.R. § 20.1106; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (there are no freestanding claims for earlier effective dates). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has obtained several examinations. Thus, VA has satisfied both the notice and duty to assist provisions of the law. II. Analysis Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with various criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule)-which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. And after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When making determinations concerning the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The veteran's statements regarding the severity of his service-connected disability are deemed competent with regard to the description of symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria. Consideration must be given to his possible entitlement to "staged" ratings to compensate him for times since filing his claim when this disability may have been more severe than at other times during the course of his appeal. The veteran's right wrist median nerve disorder is currently rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8515. A 10 percent rating is appropriate for both the major and minor hand when there is mild incomplete paralysis of the median nerve. For moderate incomplete paralysis, a 30 percent rating is assigned for the major hand and a 20 percent rating is assigned for the minor hand. For severe incomplete paralysis, a 50 percent rating is assigned for the major hand and a 40 percent rating is assigned for the minor hand. A 70 percent rating is assigned for complete paralysis of the median nerve on the major side with such manifestations such as the hand inclined to the ulnar side; the index and middle fingers more extended than normal; considerable atrophy of the muscles of the thenar eminence; the thumb in the plane of the hand (ape hand); pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to the palm; weakened wrist flexion; and pain with trophic disturbances. Complete paralysis of the minor hand is rated as 50 percent disabling. With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis for a particular 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. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The normal range of motion of the wrist is 0 to 70 degrees of dorsiflexion, 0 to 80 degrees of palmar flexion, 0 to 45 degrees of ulnar deviation, and 0 to 20 degrees of radial deviation. 38 C.F.R. § 4.71, Plate I. An electromyogram (EMG) consultation was conducted in July 2003. The study revealed severe bilateral sensory neuropathy and moderate motor neuropathy. A VA examination was conducted in February 2004. The veteran complained of a heightened sensitivity from both wrists down the hands. Physical examination found no atrophy in the hands, and upper extremities motor strength was 5/5. Sensory examination found markedly diminished position sense in the hands; pin and light touch were relatively spared. A VA examination was conducted in June 2005. The veteran complained of hypersensitivity, intermittent stabbing pains in the hands, and hand stiffness. The veteran had 4+/5 strength in all intrinsic hand muscles. There was no definable atrophy. There was some diminution of position and vibration. Light touch and pain were intact. The examiner stated that the veteran's peripheral neuropathy is unchanged over 20 plus years, there would be no reason for the condition to get worse. He also stated that the hand stiffness was not a symptom of neuropathy. A June 2005 VA upper extremities nerve conduction velocity (NCV)/EMG report was noted to be abnormal, with generalized peripheral neuropathy affecting the upper extremities, bilaterally. A needle EMG screen of the left upper extremity was negative. Disability ratings in excess of 30 percent for the veteran's neuropathy of the right hand and 20 percent for the neuropathy of the left hand are not warranted. The next higher rating of percent under DC 8515 requires evidence of severe incomplete paralysis of the extremity. The VA examiners noted no atrophy, 4+/5 and 5/5 muscle strength and that pin and light touch were intact. As the veteran manifests almost normal motor strength in the hands, severe incomplete paralysis has not been approximated. As the 30 percent and 20 percent ratings represented the greatest degree of impairment shown from the effective date of the grant of service connection to the present, there is no basis for staged ratings. No higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and increased ratings are not warranted. ORDER A disability rating greater than 30 percent for neuropathy of the right (major) hand is denied. A disability rating greater than 20 percent for neuropathy of the left hand is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs