Citation Nr: 1302576 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 06-32 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for left ulnar neuropathy as a residual of a penetrating left elbow wound, currently evaluated as 10 percent disabling. 2. Entitlement to a rating greater than 10 percent for injury to Muscle Group (MG) VI as a residual of a penetrating left elbow wound. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active duty service from July 1969 to July 1971. He is a recipient of a Purple Heart medal and Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2011 the Board remanded the issue of an increased evaluation for residuals of a penetrating left elbow wound, to include left ulnar neuropathy, and the issue of entitlement to a separate disability rating for muscle impairment of the left arm/hand/elbow, as secondary to service-connected residuals of a penetrating left elbow wound for further development. A July 2012 rating decision granted the Veteran service connection for MG VI as a residual of a shell fragment wound with an initial 10 percent disability rating effective July 6, 2007. As addressed in the REMAND below, the Board finds that the issue of entitlement to a rating greater than 10 percent for injury to MG VI as a residual of a penetrating left elbow wound is part and parcel the left elbow increased rating claim appealed to the Board. This issue remains on appeal. In November 2011, the Board found that the issues of (1) entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD), (2) entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), (3) entitlement to service connection for traumatic brain injury, and (4) the issue of clear and unmistakable error (CUE) in the March 2011 rating decision denying service connection for hearing loss were raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Representative's Written Brief Presentation, October 2011; see also Statement from Veteran, dated April 2011, and VA Form 21-8940 dated April 2011. Therefore, the Board found that it did not have jurisdiction over them, and referred them to the AOJ for appropriate action. However, the Board finds that there is no indication in the Veteran's claims file or the Virtual VA paperless claims processing system that they have been adjudicated; thus, the Board once again refers all of those issues (with the exception of entitlement to TDIU) to the AOJ for appropriate action. The Board finds that although an appeal was not received on the issue of entitlement to TDIU, it is now before the Board because it has been reasonably raised during the adjudicatory process of the underlying claim for an increased rating and is a component of the instant appeal; the Board finds that it was raised in the November 2011 VA examination report. See Rice v. Shinseki, 22 Vet. App. 447,454-455 (2009). Therefore, the issues are as listed on the title page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to a rating greater than 10 percent for injury to MG VI as a residual of a penetrating left elbow wound and entitlement to a TDIU rating are addressed in the REMAND below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The Veteran's left ulnar disability is manifested by symptoms of left arm and hand weakness with numbness and tingling sensation with intermittent severe flare-ups of disability and clinical findings of slightly diminished hand grip, hyperreflexia, mild hyperesthesia and mild giveway weakness in the left deltoid and tricep; the overall disability results in no more than mild incomplete paralysis of the ulnar nerve. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for left ulnar neuropathy as a residual of a penetrating left elbow wound have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran filed his increased rating claim in January 2005. A pre-adjudicatory RO letter in March 2005 fully satisfied the timing and generic content requirements of the VCAA. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this respect, the Veteran was notified of the types of evidence deemed necessary to substantiate a worsening of his condition and disablement caused by his condition, to include a description of his symptoms, their frequency and severity, and other involvement, extension and additional disablement caused by his condition. He was also advised of the relative duties upon himself and VA in developing his claim. To the extent deemed necessary, a March 2006 letter advised the Veteran as to how VA determines disability ratings, and how VA determines the effective date. Any timing deficiency was cured with readjudication of the case by the RO in subsequent supplemental statements of the case. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006) VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issues decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this respect, the RO has obtained service treatment records, VA treatment records and Social Security Administration records. The Veteran was afforded VA examinations in March 2011, April 2011, and November 2011. The Board finds that these examinations are adequate for rating purposes because they conveyed pertinent medical findings stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Since these examinations, the Board finds no lay or medical evidence suggesting an increased severity of symptoms to the extent of suggesting the possibility of a higher rating under the applicable rating criteria. As such, there is no duty to provide further medical examination on this claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board is aware of no additional outstanding evidence that is necessary for a fair adjudication of the claims that has not been obtained. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim herein decided. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 1 Vet. App. at 594. When 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is currently receiving his 10 percent disability rating for left ulnar neuropathy under 38 C.F.R. § 4.124a, DC 8516. DC 8516 provides that mild incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side; moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side; and severe incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side. Complete paralysis of the ulnar nerve, the "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, is rated 60 percent disabling on the major side and 50 percent on the minor side. 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Historically, service treatment records show that the Veteran was injured in action on July 7, 1970, when he sustained a penetrating wound to the left elbow, without nerve or artery involvement. The specific circumstances of the wound were noted as "unknown." He was subsequently awarded a Purple Heart. An August 1970 hospital discharge note indicates that the Veteran's recovery was "uneventful." The separation examination made no mention of the left elbow injury. Following service, the Veteran filed a claim for service connection in September 1980 for an injury to the left arm. He noted that a piece of shrapnel had been removed from his arm at the time of his injury and that he recently started to experience pain in the elbow and arm area. Service connection was granted for a left elbow injury (identified by the VA examiner as a "stab wound") in December 1980. A 0 percent rating was assigned under DC 7805 (scar). A July 1997 private hand surgeon report indicated that the Veteran complained of a left Dupuytren's contracture with pain in his hand, elbow and shoulder. The origin of his impairment was attributed to nerve conduction problems with the ulna nerve. The Veteran reportedly underwent a Dupuytren's contracture release. The Veteran's claim for an increased rating was received in January 2005. He sought compensation for left elbow scars, arthritis and nerve damage. A September 2005 rating decision denied the Veteran's claim for an increased rating and continued the 0 percent evaluation. The Veteran disagreed with that determination, stating that his left arm constantly hurt and that he had sustained nerve damage from his injury in Vietnam. A timely appeal ensued. At a March 2006 VA examination, the Veteran described left elbow numbness and tingling into the hand with radiation up to the shoulder. He complained of daily pain of 4/10 severity with intermittent, sudden flare-ups of tingling knife-like pains of 8-9/10 severity. He had a history of dropping items which was no longer problematic as he held an office job. He was right-hand dominant. On examination, the Veteran's hand grip measured 41 kg on the right and 27 kg on the left. He had asymmetric hyperreflexia of 3+ at the left triceps and 2+ at the brachialis radialis. He had normal sensation to sharp, vibration and thermal. There was point tenderness at the medial elbow area. The Veteran had full range of left elbow motion with normal movement of the hand, wrist and fingers. There was no loss of motion due to pain, weakness, fatigue or lack of endurance following repetition. The examiner diagnosed ulnar neuropathy of the left upper extremity causing sharp, shooting pains and hyperreflexia. The overall impairment was described as mild. A July 2006 VA clinic evaluation noted slightly diminished left hand grip. An August 2006 electromyography and nerve conduction velocity (EMG/NCV) was interpreted as showing "mild" left ulnar neuropathy at the elbow. In December 2006, the Veteran described increased left elbow pain with numbness at times. He was advised to increase his Tramadol frequency dosage. Notably, in a statement received in September 2006, the Veteran reported that his left hand was constantly falling asleep, and that he was losing left arm and hand strength. An April 2007 neurology consultation indicated that the Veteran's ulnar distribution dyesthesias were partially remitted with Gabapentin. The Veteran took Tramadol as needed (prn) for breakthrough symptoms (sxs). The examiner described the Veteran has having stable, mild weakness. Examination demonstrated intact pinprick (PP) sensation, hyperesthesia in the left ulnar distribution and slightly diminished left hand grip. Otherwise, the Veteran did not manifest any gross motor deficits, atrophy or significant focal findings. On VA examination in June 2007, it was noted that the Veteran had a past problem with dropping things but it had gotten better; his current symptoms included a decrease in grip strength and mild left arm pain. He used Gabapentin for partial relief and Tramadol for pain. He reported severe pain once a day when the hand went numb and his fingers tingled. On examination, the Veteran manifested 4/5 left upper extremity strength with normal muscle tone and normal muscle bulk. Sensory examination was normal. Following review of the August 2006 EMG results, the examiner diagnosed left ulnar neuropathy. It was also noted that there were no significant effects on the Veteran's occupation and mild effects on his chores. In a rating decision dated July 2007, the RO increased the Veteran's evaluation from 0 percent to 10 percent (effective January 12, 2005, the date of claim for an increased rating). Since the associated scar did not meet the criteria for a 10 percent rating under DC 7805, and since there was no limitation of function of the affected part, the RO assigned the 10 percent rating under DC 8516 for "mild" left ulnar neuropathy. The Veteran continued to disagree with this evaluation, stating that his condition was "chronic" in nature and that he suffered from chronic arm and elbow pain. A November 2007 VA clinic record was significant for findings of symmetrical deep tendon reflexes (STRs), intact pinprick sensation, hyperesthesia in the left ulnar distribution and slightly diminished left hand grip. Otherwise, the Veteran did not manifest any gross motor deficits, atrophy or significant focal findings. A June 2008 VA clinic record recorded similar findings, to include a finding that there was no left hand clawing. A nerve conduction study/EMG was conducted in September 2008. At that time, the Veteran complained of chronic left arm pain from the elbow to the 4th and 5th digits, with associated hand weakness and loss of grip. Physical examination revealed 5/5 strength in the upper extremities with mild giveaway weakness in the left deltoid and tricep. There was no atrophy; deep tendon reflexes were normal; and left ulnar Tinel's sign was positive. The NCS revealed normal nerve and motor findings with respect to the left ulnar and median nerves. There was reduced amplitude of the wrist to elbow segment with reduced sensory nerve conduction velocity of the finger to wrist segment of the left ulnar nerve. EMG of the muscles was normal. The diagnosis was mild left ulnar neuropathy at the elbow. The Veteran also underwent a VA examination in September 2008. He reported that his condition had progressed and that he was in constant pain in his forearm. He stated that he lost feeling in his left fifth finger, fourth finger, and left middle finger. He reported constant pain just below the elbow in the forearm. He stated that he awoke with 10/10 pain at least 50 percent of the time. He took Tramadol on those days with some diminished pain. He also took Gabapentin 3 times per day. The pain was described as muscle, not joint pain. His left finger numbness increased with hand usage. He also described decreased grip strength and dysesthesias with tingling in his fingers and aching in his forearm. He denied flare-ups. Physical examination revealed a 4 centimeter scar vertical in height, laterally above the elbow. The scar was less than 0.5 centimeters in diameter, slightly hypopigmented, and not adherent to underlying tissue. At the top, there was a narrow 1.5 centimeter traverse scar, again well-healed, not unstable, no breakdown, and no adherence to underlying tissue. His right and left forearm circumferences were roughly the same. Other scars were identified on the fingers but related to calcium removal. He was able to oppose all fingers to his thumb on the left. Grip was 4/5. The assessment was left arm strain with pain. Thereafter, VA treatment records showed persistent complaints and treatment for left ulnar dysesthesias and neuropathy. Evaluations in January 2009, August 2009 and June 2010 VA treatment continued to report mild hyperesthesia in left ulnar distribution and slightly diminished left grip, but no gross motor deficits, atrophy, clawing, or other muscle atrophy. The Veteran's neuropathy was again assessed pursuant to a March 2011 VA examination. The Veteran reported that his neuropathy symptoms had progressed and that he was in constant pain in the area of his left elbow. This elbow pain was not related to movement of the elbow joint, but more in the surrounding muscle. He also noted paresthesias in the left middle, pointer, and ring fingers. He noted tingling in the thumb and pinky finger. He reported that he was no longer employed due to (non-service connected) benign positional vertigo. He did not report flare-ups. Upon physical examination, the Veteran had full range of motion of his elbow. Supination and pronation at the wrist was normal. He was able to oppose his left thumb to the fingers. He described paresthesias in the fingertips. He had no diminished sensation to touch or microfilament. His motor, tone, and bulk in the left upper extremity and forearm were normal. Circumferences of the forearms were roughly similar. The assessment was injury of the left upper extremity with scar, and paresthesias of the left finger with left arm strain with pain. In April 2011, the Veteran was afforded another VA examination and he reported that he felt his symptoms had progressed. He also reported pain in the left elbow but it was not related to movement of the joint and was a 3-4 out of 10. It was noted that the Veteran had full range of motion of his elbow and that when he had flare-ups he could not play golf. He was not employed because of benign positional instability. It was noted that he some paresthesias of the left finger. At the Veteran's November 2011 VA examination, it was noted that the Veteran's NCV study was compatible with a mild ulnar sensory neuropathy, which is not well localized. It was noted that the Veteran's flare-ups did not impact the function of elbow but it would cause problems with employment of a physical nature requiring use of his nondominant hand. His range of motion for his elbow was normal and he did not have localized tenderness or pain on palpation of the joints/soft tissue of either elbow or forearm. The Veteran's private medical records associated with the claims folder reveal no relevant findings pertaining to his left elbow disability. A July 2012 rating decision granted the Veteran service connection for MG VI as a residual of a shell fragment wound with an initial 10 percent disability rating effective July 6, 2007. Applying the criteria to the facts of this case, the Board finds that the criteria for a rating greater than 10 percent for left ulnar neuropathy have not been met for any time during the appeal period. In this respect, the credible lay and medical evidence shows that the Veteran's left ulnar disability is manifested by symptoms of left arm and hand weakness with numbness and tingling sensation with intermittent severe flare-ups of disability and clinical findings of slightly diminished hand grip, hyperreflexia, mild hyperesthesia and mild giveway weakness in the left deltoid and tricep; the overall disability results in no more than mild incomplete paralysis of the ulnar nerve. In order for the Veteran to warrant an increased rating for his left ulnar neuropathy there needs to be evidence of at least moderate incomplete paralysis. The Veteran describes left ulnar neuropathy symptoms of left arm and hand weakness with numbness and tingling sensation with intermittent severe flare-ups of disability. His complaints are credible and entirely consistent with the evidentiary record. In this respect, the clinical findings have been significant for descriptions of slightly diminished, or 4/5, hand grip, hyperreflexia and mild hyperesthesia and mild giveway weakness in the left deltoid and tricep. The EMG/NCV studies have consistently reported a "mild" left ulnar neuropathy. The Board must rate this claim with consideration of the relative impairment in motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. With respect to motor function, the clinicians have consistently described a slightly diminished left hand grip which does not cause significant disuse of the left elbow or hands. He has also been described as having mild giveway weakness in the left deltoid and tricep. However, the Veteran has demonstrated on examination full functioning of his left hand and fingers. There is no "griffin claw" deformity (notably a Dupuytren's contracture was corrected by surgery in the late 1990's), finger flexor contracture, muscle atrophy indicative of disuse or impairment of wrist flexion. In this record, the Board finds no lay or medical evidence of any trophic changes associated with the service-connected left ulnar neuropathy disability. The Veteran does report hyperesthesia along the ulnar distribution, which includes the left elbow and left hand fingers. However, the Veteran has normal sensation to pinprick, vibration and thermal. The Board also considers the clinician descriptions of the overall level of left ulnar neuropathy disability. The Veteran's VA Compensation and Pension examiners in 2006, 2007, 2008, and 2011, as well as VA physicians in the clinical setting, have all diagnosed the Veteran with "mild" neuropathy. No examiner has provided an opinion that this disability is more than "mild" in degree during the appeal period. A VA examiner in 2011 did indicate that, during flare-ups, the Veteran would experience problems with activities requiring use of his non-dominant hand. The frequency of flare-ups has been described as daily but intermittent, usually exacerbated by use. A VA examiner in 2007 described the Veteran's left ulnar disability has having a mild effect on performing chores. Taking into consideration all of this evidence, the Board finds that the preponderance of the evidence establishes that the Veteran's left ulnar disability is manifested by symptoms of left arm and hand weakness with numbness and tingling sensation with intermittent severe flare-ups of disability and clinical findings of slightly diminished hand grip, hyperreflexia, mild hyperesthesia and mild giveway weakness in the left deltoid and tricep; the overall disability results in no more than mild incomplete paralysis of the ulnar nerve. In the opinion of the Board, these findings do not meet, or more closely approximate, the criteria of "moderate incomplete paralysis" for any time during the appeal period. In so deciding, the Board has found the Veteran's report of symptomatology and functional impairment to be credible and consistent to the evidentiary record. With respect to the overall severity of his disability, however, the Board places greater probative weight to the clinical findings by the physicians of record who possess greater training and expertise than the Veteran in evaluating a neurologic disorder. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As addressed in the REMAND below, the Veteran has remaining aspects of left elbow disability, in the form of muscle impairment and scar impairment, which require further adjudication. The Board defers consideration of 38 C.F.R. § 3.321(b) until the Board can determine that all separate ratings assigned adequately encompass all aspects of service-connected left elbow disability. In sum, the Board finds that the Veteran's service-connected penetrating left elbow wound, to include left ulnar neuropathy, is manifested by mild neuropathy and not by moderate incomplete paralysis. Thus, an increased rating in excess of 10 percent is not warranted. ORDER An increased rating in excess of 10 percent for left ulnar neuropathy as a residual of a penetrating left elbow wound is denied. REMAND At the time of the November 2011 remand, the RO had certified for appeal an issue of entitlement to an increased rating for left ulnar neuropathy of the left elbow. The Board, after a discussion of the historical record, found that there was a suggestion that the Veteran's left elbow disability was manifested by both nerve and muscular damage, and remanded the claim for further examination. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that separate ratings may be awarded for disability manifestations characterized by compensable symptomatology distinct and separate from that of other service-connected disabilities). In remanding the left elbow disability at issue, the Board rephrased the issues on appeal as 1) entitlement to an increased evaluation for residuals of a penetrating left elbow wound, to include left ulnar neuropathy, currently evaluated as 10 percent disabling and 2) entitlement to a separate disability rating for muscle impairment of the left arm/hand/elbow, as secondary to service-connected residuals of a penetrating left elbow wound. To emphasize that both issues were deemed on appeal, the Board provided the following instruction in the remand directives: Then, the RO should readjudicate the issue of a disability rating in excess of 10 percent for left ulnar neuropathy and entitlement to a separate rating for residuals of a penetrating wound to the left elbow with injury to left arm/hand/elbow muscles. If the Veteran's claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case regarding this matter and allowed a reasonable opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise appropriate. (emphasis added). As reported above, a July 2012 RO rating decision granted "service connection" for injury to MG VI and assigned a 10 percent rating which was separate and distinct from the compensation provided for the nerve injury aspect of disability. Typically, an appeal is satisfied when service connection is granted on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). However, in this situation, the Veteran has appealed the disability rating for all residuals of his left elbow injury for which the muscle disability is part and parcel of the increased rating claim appealed to the Board. The fact that a separate disabity rating was provided for muscle disability does not moot out the Veteran's opportunity to seek the highest possible rating. AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded, unless the claimant expressly limits the appeal). Thus, the Board finds that the issue of entitlement to a rating greater than 10 percent for injury to Muscle Group (MG) VI as a residual of a penetrating left elbow wound is on appeal. The claim is remanded for issuance of a supplemental statement of the case as directed in the November 2011 remand. Notably, in submitting his increased rating claim in January 2005, the Veteran sought compensation for left elbow scars, arthritis and nerve damage. The RO addressed the scar issue in the September 2006 Statement of the Case, but did not address this issue in the most recent SSOC dated July 2012. The RO should also address the scar issue in readjudicating the remaining aspects of the claim. The Board further notes that, in November 2011 the Board referred the issue of entitlement to a TDIU rating to the AOJ; however, as noted above, the AOJ has not developed the issue of entitlement to a TDIU rating. The Board finds that based upon the November 2011 VA examiner's finding that the Veteran's service-connected left ulnar neuropathy would cause problems with employment of a physical nature requiring use of his nondominant hand and that he has an overall rating of 80 percent, he meets the criteria for consideration of a TDIU rating based on that disability under 38 C.F.R. § 4.16(a) (2011). See Rice v. Shinseki, supra. However, further development, to include a VA examination, the report of which must contain an assessment offered by a VA examiner as to whether all of the Veteran's service-connected disabilities (penetrating left elbow wound, to include left ulnar neuropathy; PTSD; muscle tension headaches; and muscle group VI residual of a shell fragment round) renders him incapable of performing the physical and mental acts required for substantially gainful occupation, is needed before the Board may consider this aspect of the claim. Thus, Board finds that the TDIU rating component to the Veteran's claim for increased compensation must be remanded. See 38 U.S.C.A. § 5103A (West 2002); see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Prior to any VA examination, attempts should be made to obtain any outstanding records of pertinent medical treatment. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to TDIU. The RO should have the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits (for each of the Veteran's former employers). 2. Associate with the claims folder relevant records of the Veteran's VA treatment since May 2011 as well as any records associated with his application for VA Vocational Rehabilitation benefits. 3. Upon completion of the above, the Veteran should be afforded a VA examination to determine whether his service-connected disabilities (penetrating left elbow wound, to include left ulnar neuropathy; PTSD; muscle tension headaches; and muscle group VI residual of a shell fragment round) preclude him from obtaining and maintaining all forms of substantially gainful employment. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on a review of the record evidence, the examiner should identify the symptoms and manifestations associated with the Veteran's service-connected disabilities (penetrating left elbow wound, to include left ulnar neuropathy; PTSD; muscle tension headaches; and MG VI muscle injury) and opine as to whether it is at least as likely as not those disabilities render the Veteran incapable of performing the mental and physical acts required for all forms of substantially gainful employment, given his educational and occupational background. In making this assessment, the examiner is advised that neither the Veteran's age nor his non-service-connected disabilities should be considered. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 4. Thereafter, readjudicate the claims. In adjudicating the claim of entitlement to a rating greater than 10 percent for injury to MG VI as a residual of a penetrating left elbow wound particular, the RO should specifically adjudicate whether a separate rating is warranted for residual scar disability. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs