Citation Nr: 1007199 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-12 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities and left upper extremity. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for urinary dysfunction. 6. Entitlement to service connection for peripheral artery disease (circulatory problem) of the right lower extremity. 7. Entitlement to service connection for a skin disability. 8. Entitlement to service connection for a respiratory disorder. 9. Entitlement to a disability rating higher than 30 percent for right ulnar nerve compression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from February 1962 to December 1989. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran presented testimony at a Board hearing chaired by the undersigned Veterans Law Judge at the RO in September 2009. A transcript of the hearing is associated with the claims file. The claims for service connection are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's right ulnar nerve compression is manifested by moderate incomplete paralysis of the right ulnar nerve. CONCLUSION OF LAW The criteria for a disability rating higher than 30 percent for right ulnar nerve compression have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4 120, 4.123, 4.124, 4.124a, Diagnostic Code 8516 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this appeal, in a March 2006 pre-rating letter, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the increased rating claim, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. That letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of VA and private treatment records, and the reports of January 2007, December 2007, and July 2009 VA examinations. Each examination was performed by a medical professional, based on solicitation of pertinent history and symptomatology from the Veteran. Each examiner apparently performed a thorough examination of the Veteran, and included diagnoses and rationales consistent with their examination and the record. The Board finds this evidence adequate to evaluate the claims on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Also of record and considered in connection with the appeal is the transcript of the Veteran's RO hearings and his September 2009 Board hearing, along with various statements submitted by the Veteran and his representative, on his behalf. The Board also finds that no additional RO action to further develop the record is warranted. II. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Historically, the Veteran injured his right ulnar nerve in service when he slipped on a wet floor and fell, landing on his right elbow. In a May 1990 rating decision, the RO granted service connection and assigned a 10 percent rating for right ulnar nerve compression (dominant arm), pursuant to Diagnostic Code 8516, effective January 1, 1990. The Veteran filed his current claim in February 2006. The April 2007 rating decision granted an increased rating of 30 percent, effective February 27, 2006. Under Diagnostic Code 8516, a 30 percent rating is assigned where there is found to be moderate incomplete paralysis of the ulnar nerve involving the dominant arm. A 40 percent rating is available where such incomplete paralysis is severe. A maximum 60 percent rating is available for complete paralysis with a "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516. In evaluating the degree of impairment, the Board has considered the guidance established in 38 C.F.R. §§ 4.130, 4.123 and 4.124. Although neither neuritis nor neuralgia have been diagnosed, the regulations provide guidance in determining the degree of neuropathy and functional impact. The Board notes initially that there is some question as to the proper attribution of the Veteran's right arm symptomatology. The December 2007 examiner identified involvement of the musculocutaneous, radial, median, and ulnar nerves. However, this appears to have been based on nature of the Veteran's complaints rather than on actual nerve conduction testing. An EMG conducted in March 2006 showed that the Veteran had mild right ulnar neuropathy. A nerve conduction study in August 2009 was actually described as negative. Indeed, the July 2009 examiner found no evidence of ulnar neuropathy, but described the injury as elbow epicondylitis/bursitis. The Board notes that, although the Veteran originally claimed entitlement to service connection for right elbow tendonitis, service connection was granted, and is currently in effect, specifically for compression of the ulnar nerve. Accordingly, Diagnostic Code 8516 is the most appropriate diagnostic code regarding nerve impairment. Also, there is no contention on the part of the Veteran, or on his behalf, that he has sustained complete paralysis of his right ulnar nerve, or that criteria such as griffin claw deformity, or loss of extension of the ring and little fingers, or loss of thumb adduction, characteristic of a 60 percent rating, are met or approximated. As will be discussed in more detail below, the Veteran still retains some function involving the ulnar nerve. His essential complaints involve weakness, paresthesias, and numbness of the affected area, proximal to the right elbow. Indeed, the December 2007 examination report reflects a finding of no resulting paralysis. The Board therefore turns to entitlement to a rating at the 40 percent level, for severe incomplete paralysis of the ulnar nerve. Considering the medical evidence in light of the above-noted criteria, the Board finds that a rating in excess of 30 percent for the Veteran's ulnar nerve compression is not warranted, as the evidence does not approximate severe incomplete paralysis of the ulnar nerve. 38 C.F.R. § 4.7. In so concluding, the Board finds particularly significant the March 2006 EMG showing mild right ulnar neuropathy, as well as the August 2009 negative findings. While the Board acknowledges that terminology such as "mild" used by VA examiners and others is not dispositive of the issue, in light of the extensive list of disabilities, both service- connected and nonservice-connected, the EMG results represent the most specific evaluation of the service-connected ulnar nerve. The Board also notes that the report of VA examination in January 2007 reveals that the Veteran's symptoms have remained "about the same" since the initial injury. We also note that the reflexes remain present and although there were changes in sensation, there was no muscle atrophy, wasting or abnormal tone or bulk. See 38 C.F.R. § 4.120. Also persuasive, while the Veteran maintains that the disability causes weakness, and impairment of coordination, resulting in a difficulty grasping things, the reports of VA examinations in December 2007 and July 2009 showed muscle strength described as "4" (presumably out of 5, which is the typical scale for muscle strength evaluations). Significantly, there was found to be no muscle atrophy or abnormal tone or bulk. Likewise, the January 2007 examiner found no muscle wasting, or atrophy. The Veteran has also reported numbness and paresthesias involving the right arm. However, on VA examination in December 2007, sensory evaluation revealed normal vibration sense, light touch, and position sense. Pertinent reflexes were 1+ or 2+. On examination in July 2009, vibration sense was found to be decreased, as was pain sensing, light touch, and position sensing. However, pertinent reflexes were all present and 1+ or 2+. There were no tremors, ticks, or abnormal movements. The Board also acknowledges that the Veteran does experience flare-ups, which were described in the July 2007 examination report as severe, and which are precipitated by pressure on the right elbow, resulting in a marked impact in its use. During such flare-ups, the Veteran would not be able to use the hand at all, especially for grasping objects. The frequency of flare-ups was described as 3 to 4 times per month at the very severe level, lasting minutes, and associated with pain, weakness, fatigue, and functional loss. The Veteran reported that, during such a flare-up, he cannot do anything with the right hand or elbow, and he drops things. The examiner found that these symptoms result in impairment of motor and sensory function and fine motor control. However, in light of the normal to mild EMG results, and the minimal objective findings on examination, it would appear that the increased symptomatology during flare-ups is to a large degree balanced by such minimal objective findings. Also reflecting this balance of symptoms, the report of VA examination in December 2007 notes the effect of the disability on chores, shopping, exercise, and traveling as severe. Sports and recreation were prevented. However, the effect on bathing and dressing was moderate. The effect on grooming was mild. There was no effect on feeding or toileting. The July 2009 examiner made similar findings. The Board finds that, on the whole, this description is consistent with moderate overall impairment. Given the diagnosis of bursitis, which is rated in accordance with limitation of motion, the Board has considered whether a higher rating is warranted on that basis. On VA examination in December 2007, there was full active range of motion of the right upper extremity. However, after repetitive movement of the right elbow, the Veteran experienced weakness, fatigue, pain, and lack of endurance, and this caused a functional impact. The examiner described the elbow as weak on flexion, extension, pronation, and supination. On VA examination in January 2007, the range of motion of the right elbow was again described as normal, and the joint itself was not painful. Thus, while Veteran does experience pain, weakness, incoordination, and fatigue of the affected area, associated with motion and flare-ups, in light of the normal range of motion on examination, the factors discussed in 38 C.F.R. §§ 4.40, 4.45 (2009); and DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) do not provide for a higher rating on the basis of limitation of motion. Moreover, as there is no frank loss of motion, and the symptoms of weakness, fatigue, pain, and incoordination appear to be contemplated by the rating assigned for neurological impairment, the evidence is against the assignment of a separate rating for limitation of motion, in accordance with Esteban v. Brown, 6 Vet. App. 259, 261(1994). The Board also acknowledges that, the December 2007 examiner noted that the Veteran's use of narcotics for pain resulted in his inability to perform at work, for which he was terminated. However, the Veteran is service connected for several disabilities manifested by pain, including a low back disability rated at 40 percent. In addition, he has numerous nonservice-connected disabilities manifested by pain. The December 2007 did not attempt to distinguish these various disabilities, and the evidence certainly does not indicate that the Veteran's use of narcotics is somehow disproportionately attributable to his right ulnar nerve compression. Indeed, his principal complaints regarding the right upper extremity are numbness, weakness and paresthesias. As noted, on VA examination in January 2007, the joint itself was not painful. Moreover, the July 2009 examiner specifically found that the current medications for his right arm were not responsible for any side effects. This finding more specifically addresses the attribution of symptoms attributable to the disability being evaluated, and is therefore more probative than the December 2007's more general statement. Accordingly, the evidence indicates that a higher rating is not warranted on the basis of side effects of medication. In sum, for the reasons discussed, the Board finds that a preponderance of the evidence is against the assignment of a higher schedular rating, or separate rating, under the applicable rating criteria. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, the United States Court of Appeals for Veterans Claims extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." 21 Vet. App. 505, 511 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. The Board has also considered whether a higher rating is warranted on an extraschedular basis. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, No.2008-7135 (Fed. Cir. Jul. 17, 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Significantly, rating criteria include higher ratings where symptomatology of the appropriate degree is demonstrated. As the Veteran's disability picture is contemplated by the rating schedule, no referral is required. ORDER A disability rating higher than 30 percent for right ulnar nerve compression is denied. REMAND The Veteran's service personnel records indicate that he was stationed in Thailand between September 30, 1966 and September 25, 1967. The Veteran maintains that he had temporary duty assignments involving flights, which landed in Vietnam. The Veteran also contends that, while stationed in Florida, he serviced aircraft that had previously dispensed herbicides, and that these planes were covered in residue of herbicide agents, to which he was exposed while working on the planes. The RO has obtained the Veteran's complete service personnel records, including the 201 file. The RO has also asked the National Personnel Records Center (NPRC) to attempt confirmation of the Veteran's duty in the Republic of Vietnam. The NPRC responded that they could not confirm any duty in Vietnam. However, the Veteran's essential contention is that his presence in Vietnam involved temporary duty assignments, and that therefore, no official documents would confirm his presence. The Board notes that, if lay evidence presented by a veteran is found to be credible and ultimately competent, a lack of corroboration by official records is not an absolute bar to the Veteran's ability to prove his claim based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After review of the Veteran's account, the Board believes that official unit histories for the Veteran's unit could prove useful in determining whether flights from the Veteran's unit, in the nature described by the Veteran, were made to Vietnam. Those records have not yet been requested. In addition, the Veteran has indicated that he wrote to his wife from Vietnam, and that she would be willing to write a statement attesting to his account, if necessary. While the VCAA notice letters informed the Veteran that he could submit lay statements in support of his claims. Regarding the Veteran's assertions of being exposed to herbicides while servicing planes in Florida, an attempt should be made to verify if such exposure is actually possible. Each of the claims for service connection are claimed due to herbicide exposure. Therefore, they are all impacted by the development requested here. The claims for service connection for peripheral neuropathy, hypertension and erectile dysfunction are also potentially secondary to the claim for diabetes. To that extent, they are inextricably intertwined and the proposed development will encompass those issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation]. Also, regarding the claims for service connection for urinary and erectile dysfunction, the service treatment records show treatment for chronic prostatitis in October 1976. However, findings for the genito-urinary system at discharge were normal. The Veteran stated on his VA Form 9 that the urinary symptoms were present in service and have been continuous. The Veteran is competent to describe his symptoms, such as urinary hesitancy/urgency, as well as their duration. Thus, there is competent evidence of a diagnosis in service, as well as urinary symptoms in service and continuously since. The Veteran also testified at his Board hearing that he believes the claimed urinary and erectile dysfunction are secondary to his service connection back disability. The VCAA and its implementing laws and regulations provide, generally, that an examination or opinion is necessary if the evidence of record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and establishes that the Veteran suffered an injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established injury, or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). Based on the evidence discussed above, the Board finds that a VA examination and nexus opinion are in order for the claimed urinary and erectile dysfunction. Regarding the claimed skin disability, The Veteran was diagnosed with basilar keratinocytes in June 2004. Service treatment records show that he was treated for a groin rash in January 1964, and that he was diagnosed with dermatitis in April 1984, and with seborrheic keratosis in June 1989. Findings for the skin at discharge were normal. The Veteran stated on his VA Form 9 that the rash was present in service and has been ongoing. The Veteran is competent to describe his symptoms, including the presence of a rash, as well as the duration of symptoms. Thus, there is competent evidence of skin symptoms in service and continuously since. Based on this evidence, the Board finds that a VA examination and nexus opinion are in order for the claimed skin disability. See 38 C.F.R. § 3.159(c)(4). Regarding the claimed peripheral artery disease of the right leg, service treatment records reveal that the Veteran was diagnosed with deep vein thrombosis in service, in September 1988, as shown on a right leg venogram. Findings for the vascular system and lower extremities at discharge were normal. The Veteran has a current diagnosis of peripheral artery disease, as shown on the report of a December 2006 vascular consultation. Thus, there is competent evidence of a circulatory disease of the right leg in service, and of a current circulatory disability of the right leg that may be related to the in-service diagnosis. Based on this evidence, the Board finds that a VA examination and nexus opinion are in order for the claimed circulatory disability of the right leg. See 38 C.F.R. § 3.159(c)(4). Regarding the claimed respiratory disorder, the service treatment records show that the Veteran was treated for sinus congestion (January 1985), chronic sinusitis (April 1978), sinusitis (January 1974, October 1987), and bronchitis (June 1985, March 1987). Findings for the lungs and sinuses at discharge were normal. The Veteran has stated that he has experienced nasal congestion intermittently since service. The Veteran is competent to describe his symptoms, such as sinus congestion. Thus, there is evidence of a diagnosis in service, as well as sinus symptoms in service, and continuously since. Based on this evidence, the Board finds that a VA examination and nexus opinion are in order for the claimed respiratory disability. See 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he (1) provide a more specific time-frame for the claimed TDY flights into Vietnam. (2) Also request that he have his wife submit a statement attesting to her receipt of letters from the Veteran, sent from Vietnam, as the Veteran mentioned in his December 2007 hearing testimony. If the letters from Vietnam exist, they should be submitted. 2. Obtain from proper sources the unit history reports for the Veteran's unit, using the time-frames provided by the Veteran, in response to Item 1. 3. Obtain an authoritative answer as to whether exposure to Agent Orange or other herbicides is possible through close contact with military equipment used in spraying these chemicals. 4. If any of the above development results in confirmation of the Veteran's presence in Vietnam, or actual exposure to herbicides, determine whether any or all of the claims can be granted on that basis. 5. If any or all of the claims for service connection for urinary dysfunction, erectile dysfunction, and circulatory disability of the right leg, are not granted on the basis of herbicide exposure, arrange for (an) examination(s) and medical opinion(s) on the nature and etiology of any current urinary dysfunction, erectile dysfunction, and circulatory disability of the right leg. The examiner should provide an opinion as to whether there is a 50 percent or better probability that any current urinary dysfunction, erectile dysfunction, and circulatory disability of the right leg is etiologically related to the Veteran's military service, to include chronic prostatitis (as appropriate) noted therein, or, if not, whether any or all are attributable to the Veteran's diabetes. 6. If either or both of the claims for service connection for skin disability and respiratory disability are not granted on the basis of herbicide exposure, arrange for (an) examination(s) and medical opinion(s) on the nature and etiology of any current skin disability and respiratory disability. The examiner should provide an opinion as to whether there is a 50 percent or better probability that any current skin disability and respiratory disability is etiologically related to the Veteran's military service. 7. Then, readjudicate the remaining claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs