Citation Nr: 1302908	
Decision Date: 01/25/13    Archive Date: 01/31/13

DOCKET NO.  99-09 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a higher initial rating for left (non-dominant) arm neuritis, to include pain and numbness, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran had active military service from July 1978 to July 1998.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

The Board notes that in a March 2001 Board decision, the Veteran was granted service connection for a cervical spine condition, to include bony spurring at the C6 level, foraminal stenosis, intervertebral disc bulging and spondylosis, as well as left arm pain and numbness, to include thoracic outlet syndrome and left ulnar neuritis.  In a May 2001 rating decision the RO assigned the Veteran a 10 percent disability rating, effective August 1, 1998, for foraminal stenosis and spondylosis of the cervical spine, intervertebral bulging at C6, with left arm numbness.  The Veteran appealed that rating and in November 2004 the Board remanded the case to provide adequate notice.  Thereafter, in September 2005, the Board denied the Veteran a higher rating for the aforementioned claim.

On appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued an August 2006 Order vacating the September 2005 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand.  Subsequently, the Board remanded the case in February 2007 requesting that the RO either assign separate ratings with regard to the Veteran's cervical spine and left arm issues, or explain why the two issues should be combined into one disability.  In a November 2007 supplemental statement of the case (SSOC), the RO continued to rate the issues together and denied a higher rating.  At the same time, the RO issued a November 2007 rating decision granting service connection for degenerative arthritis of the cervical spine with an evaluation of a 10 percent disabling, effective August 2, 2007.  In September 2008, the Board remanded the Veteran's claim under Stegall v. West, 11 Vet. App. 268 (1998), because the RO failed to comply with the Board's previous remand.  In a March 2010 SSOC, the RO granted a 10 percent disability rating for foraminal stenosis and spondylosis of the cervical spine, with disc protrusion at C6-C7 and simultaneously issued a rating decision granting a 10 percent disability rating for neuritis, effective August 1, 1998.  Thereafter, in September 2010, the Board denied entitlement to a higher initial rating for foraminal stenosis and spondylosis of the cervical spine, with disc protrusion at C6-C7, rated as 10 percent disabling, and remanded a claim of entitlement to a higher initial rating for left (non-dominant) arm neuritis, to include pain and numbness, rated as 10 percent disabling, for a SSOC to be issued regarding this issue.  In January 2012, the Board again remanded the issue of entitlement to a higher initial rating for left (non-dominant) arm neuritis, to include pain and numbness, rated as 10 percent disabling, for additional development.


FINDING OF FACT

Throughout the entire rating period under appellate review, the Veteran's left arm neuritis is shown to be productive of a disability picture that most nearly approximates mild neuritis of the ulnar nerve.


CONCLUSION OF LAW

The criteria for the assignment of an initial evaluation in excess of 10 percent disabling for left (non-dominant) arm neuritis, to include pain and numbness, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8616 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159.  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 is challenging the initial rating assignment of his service-connected disability.  Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. § 3.159(b)(3).  The RO has provided the Veteran with notice of what is required to substantiate a higher evaluation and a SSOC citing the applicable diagnostic code and discussing the reasons and bases for not assigning a higher initial rating has been issued.

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, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records.  The appellant was afforded relevant VA medical examinations in August 2002, September 2007, and February 2012.

In November 2004 the Board remanded for the Veteran to be afforded additional notice.  Subsequently, in January 2005 additional notice was sent to the Veteran.

In February 2007 the Board remanded for the Veteran to be afforded a VA medical examination, for additional records to be obtained and associated with the claims file, and for the Veteran to be provided additional notice.  Subsequently, in September 2007 the Veteran was afforded a VA medical examination, additional treatment records were obtained and associated with the claims file, and additional notice was sent to the Veteran in May 2007.

In September 2008 the Board remanded for clarification regarding whether the Veteran's left arm disability was separate from his cervical spine disability.  In February 2009 an explanation of the rating as then assigned was submitted by a Decision Review Officer.

In September 2010 the Board remanded for the claim to be readjudicated.  Subsequently, the claim was readjudicated in a SSOC dated in May 2011.

In January 2012 the Board remanded for additional treatment records to be obtained and associated with the claims file, for records regarding an application for Social Security Administration (SSA) benefits to be obtained and associated with the claims file, and for the Veteran to be afforded a VA medical examination.  Subsequently, additional treatment records and records regarding the Veteran's application for SSA benefits were obtained and associated with the claims file and the Veteran was afforded a VA medical examination in February 2012.

Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand and the examination was adequate.  See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board acknowledges that the Veteran's representative has argued that the February 2012 examination report is inadequate as the examiner noted that the Veteran had moderate numbness though determined that there had been no worsening in the Veteran's condition.  The Veteran's representative further argues that the opinion is inadequate because it is not supported by adequate rationale.  However, after careful review of the examination report, the Board finds that the medical examination is adequate.  The Board notes that the rationale for the examiner's opinion is contained in the detailed evaluation report that preceded the opinion.  The Board notes that the examiner did not comment on constant pain, intermittent pain, or paresthesias and/or dysesthesias; however, the Board finds that this is consistent with a finding that these conditions did not exist in light of the examiner's notation that the Veteran had moderate numbness.  In addition, the examination report is adequate as it includes all necessary physical findings to evaluate the disability under the applicable diagnostic code rating criteria.  

Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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).

II.  Higher Evaluation

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's left arm neuritis is assigned a 10 percent schedular disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8699-8616.  This hyphenated code is intended to show that the Veteran's disability was rated analogously to neuritis of the ulnar nerve, Diagnostic Code 8616.  See 38 C.F.R. § 4.20 (2012) (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (2012) (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99").  

As directed by 38 C.F.R. § 4.124a, Diagnostic Code 8616 provides for a 10 percent schedular disability rating for mild symptoms involving the ulnar nerve of either the major or minor side.  With moderate symptoms involving the ulnar nerve, a 30 percent rating is assignable for the major side, and a 20 percent rating is assignable for the minor side.  With severe symptoms involving the median nerve, a 40 percent rating is assignable for the major side, and a 30 percent rating is assignable for the minor side.  With complete paralysis of the ulnar nerve, a 60 percent rating is assignable for the major side, and a 50 percent rating is assignable for the minor side.  38 C.F.R. § 4.124a, Diagnostic Code 8616.

Symptoms of complete paralysis are noted to include 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; and flexion of wrist weakened.  38 C.F.R. § 4.124a, Diagnostic Code 8616.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2012).  Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by these organic changes will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2012).

Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2012).

In April 1991 the Veteran complained of left arm numbness.  He was diagnosed with rule out thoracic outlet syndrome versus ulnar entrapment.

In March 1995 the Veteran complained of the left arm going numb as if the blood was being cut off with abduction greater than 90 degrees.  The Veteran was diagnosed with rule out thoracic outlet.

In April 1997 the Veteran complained of numbness in the left arm with abduction starting around 90 degrees to above the head.  The Veteran was noted to have had similar symptoms in 1995.  He was diagnosed with rule out thoracic outlet syndrome.

In another treatment note, dated in April 1997, the Veteran was noted to complain of numbness in the left arm.  It was described as achiness and pins and needles.  There was no pain and no loss of strength.  Symptoms were noted to be worse above the head.  There was a history of cold hands and nails turning white.  Upper extremity strength was 5/5 bilaterally.  Symptoms numbness and tingling were present with abduction.  The Veteran was diagnosed with numbness rule out thoracic outlet syndrome versus quadrilateral space syndrome versus vascular compression.  

After a nerve conduction study in April 1997 the Veteran was diagnosed with left ulnar neuritis from subluxing ulnar nerve.  

In May 1997 the Veteran was provided an elbow block splint for the left elbow.  

In July 1997 it was noted that the Veteran had left ulnar neuritis with numbness and tingling in the fingers.  He had normal flexion in the elbow and numbness in the fourth and fifth digits.  He had full range of motion of the neck with reproducible numbness in the left shoulder/upper arm with turning to left.  Assessment indicated that there was no improvement to the ulnar neuritis with splints.  

In October 1997 the Veteran reported left neck pain with off and on numbness down the left arm including hand.  There was left c/b taunt, negative spasm, negative edema, negative forearm compression, negative shoulder depression, negative Adson's, normal capillary refill, Soto-Hall was positive, Tinel's was negative, and Phalen was negative.  Reflexes were 1+ and equal in the biceps and 1+ and equal in the triceps.  The Veteran was diagnosed with cervical/brachial syndrome and subluxation complex.  

In December 1998 the Veteran was afforded a VA Compensation and Pension (C&P) examination.  Upon examination the Veteran's deep tendon reflexes were present.  He had no sensory deficits.  Cranial nerves II-XII were intact.  There were no cerebellar symptoms.  He had no evidence of peripheral neuropathy.  

In December 2000 the Veteran was noted to have a history of numbness and tingling in the bilateral upper extremities with the left greater than the right since 1993.

In March 2002 the Veteran was noted to have developed left upper extremity pain which he located in his antecubital fossa present with and without motion.  His job had changed and involved heavy lifting.  He described intermittent difficulty with strength and movement in the left upper extremity.  Physical examination revealed no apparent distress.  The strength of the left upper extremity was 5/5 in flexion, extension, abduction, and adduction in the shoulder, elbow, and wrist.  Light touch sensation was intact and symmetrical on the left upper extremity when compared with the right.  Deep tendon reflexes were 2+ in the biceps and brachioradialis.  There was no evidence of muscle atrophy.  No cervical spinal process tenderness, tenderness on the left neck, left upper extremity, antecubital fossa, gross deformities, crepitus, or swelling.  The assessment was left elbow pain without abnormality on physical examination, tenderness.  

In April 2002 the Veteran was afforded a VA C&P medical examination in relation to his feet.  The Veteran was noted to have a peripheral nerve problem that is related to his cervical neck and he stated that he got shooting pains down his arms when he does certain movements while eating.  This was noted to result in short, brief pains down his arm and some numbness in his distal digits.  Examination of the upper extremities revealed normal grip strength and normal range of motion of all of his upper extremity joints.  There was no decreased sensation to light touch or pinprick and normal proprioception. 

In May 2002 the Veteran had pain in the left elbow with supination.  

In June 2002 the Veteran complained of tingling in the neck into both arms when he sneezes.  He complained of pain in the left arm to elbow.  The pain was minimally relieved by Ibuprofen.  

In August 2002 the Veteran underwent electromyography (EMG).  The testing revealed left median and ulnar motor and palmar sensory conduction studies were normal.  Needle examination of the left upper extremity and cervical paraspinal muscles was normal.  The conclusion was that it was a normal study.  There was no electrical evidence of left ulnar neuropathy, carpal tunnel syndrome, or C5-T1 radiculopathy.

In August 2002 the Veteran was afforded a VA C&P examination.  The examiner noted that the records revealed multiple evaluations for the left upper extremity.  Service treatment records were reviewed and discussed.  The Veteran reported that he had tingling and numbness on the left side that continued to be constant.  It was noted that sneezing sometimes increased the left upper extremity symptoms.  The examiner reported that the left upper extremity was not specifically addressed as it had been previously evaluated and the examiner had been requested to address the right.  

Physical examination revealed that the Veteran had normal active range of motion in both upper extremities and no muscle atrophy was appreciated.  Deep tendon reflexes were 2+ and symmetric in the upper and lower extremities.  Pinprick sensation was decreased in the right small finger compared to the index finger with no splitting of the ring finger.  Vibratory sensation was normal in the upper and lower extremities.  There was no clonus.

The Veteran underwent a neurological consultation in April 2003.  The consultation was noted to be for numbness, tingling, weakness intermittently in the left arm, progressive constant numbness in the right lateral lower leg, awakening in the night with numbness in both arms, and a history of degenerative joint disease of the cervical spine and lumbar spine.  Relevantly the Veteran complained of left arm stabbing pain in the left medial upper arm that seemed to radiate into the elbow at times.  The problems were noted to have been going on for some time.  The Veteran's left arm pain was noted to seem to be completely action related.  When he lifted an object the pain occurs.  If he lifted his arm rapidly he developed pain and did not experience pain at rest.  The pain was noted to last from less than one minute to six or seven minutes and to completely remit with rest.  Examination revealed that the Veteran had a full range of motion in all limbs but developed pain along the medial aspect of his upper arm with extension, abduction, or external rotation of the left arm.  Muscle strength appeared to be within normal limits.  Sensation appeared to be abnormal in the ulnar distribution in the hands.  Sensory examination revealed a Tinel's sign over the Guyon's canal on the left.  There did not appear to be any definite dysesthesia on any other part of the arm.  There was no Tinel's over the elbow.  Romberg was negative.  Deep tendon reflexes were 2+ and symmetrical in the upper extremities.  The EMG report of August 2002 was reviewed and noted to not show any electrical evidence of left ulnar neuropathy, carpal tunnel syndrome, or C5-T1 radiculopathy.  The impression relevantly indicated that the Veteran had a mild left ulnar neuropathy that did not appear to be causing detectable neuronal damage based upon EMG.  

In May 2003 the Veteran complained of waking up at night with numbness in both arms.  He reported that he normally sleeps on his stomach with his arms up under his head and this now resulted in numbness.  The Veteran was relevantly assessed with neuropathy versus radiculopathy.  

In October 2003 the Veteran was noted to complain of multiple left upper extremity problems including ulnar nerve pattern numbness and pain, shoulder discomfort with elevation greater than 90 degrees and axillary numbness and pain.  The Veteran had ulnar nerve compression symptoms and it was noted that he was to be fitted with a hinged elbow brace.  The Veteran also guarded in left upper extremity with impingement with elevation greater than 90 degrees.  

In January 2005 the Veteran underwent a private examination as part of a claim for SSA benefits.  Relevant to the issue on appeal, the Veteran was noted to have reduced left hand sensation with normal finger motion and good grip, 5/5.

In September 2007 the Veteran was afforded a VA medical examination regarding the spine.  The Veteran was noted to have insidious onset of left arm pain and numbness and neck pain while in service.  Relevantly the Veteran reported paresthesias.  Physical examination revealed the elbow flexion, elbow extension, wrist flexion, wrist flexion, finger flexors, finger abduction, and thumb opposition in the left side was 5/5.  Sensory examination revealed vibration, pain, light touch, and position sensation in the left was 2/2.  There was sensory loss for the 4th and 5th finger tips.  Reflex examination revealed normal reflexes in the left biceps, triceps, brachioradialis, and finger jerk.  EMG study revealed left median motor, mixed nerve (across the wrist) and digital sensory conduction studies were normal.  Left ulnar motor, digital sensory, and mixed nerve conduction studies were normal.  Left radial digital sensory conduction study was normal.  Needle exam of multiple left upper extremity muscles was normal.  The conclusion rendered was normal study.  There was no electrical evidence of left ulnar neuropathy, left carpal tunnel syndrome, left C5-T1 radiculopathy, or of a sensory motor polyneuropathy in the left upper extremity.  The Veteran was diagnosed with cervical spondylosis with unrelated left arm ulnar neuritis.  Relevantly, the examiner noted that the Veteran's prior EMGs revealed no ulnar nerve compression and he currently had a negative EMG.  The tingling in his fingertips was noted to most likely be due to a distal ulnar neuritis and not due to his cervical spine disorder.  The examiner continued to state that the Veteran had cervical spondylosis with a non-associated distal ulnar neuritis.  The examiner reported that the Veteran may have a mild amount of ulnar neuritis and that it was not believed that this arose from a thoracic outlet syndrome as the examiner had no evidence that the Veteran had thoracic outlet syndrome.  He was diagnosed with possible thoracic outlet syndrome in 1995 and the examiner believed this was given as a diagnosis of exclusion with no real work up.  The examiner stated that the pain may be related to his cervical spondylosis however this was unlikely as only the finger tips are affected and not the entire ulnar nerve as is evidence by his prior and current EMG and no loss of sensation in the ulnar nerve along his forearm.  The examiner indicated that he was able to elicit a Tinel's sign at Guyon's canal.

In February 2012 the Veteran was afforded a VA peripheral nerves examination.  The examiner noted that the Veteran did not have a peripheral nerve condition or peripheral neuropathy.  The Veteran was noted to be right handed.  The Veteran had symptoms attributable to a peripheral nerve condition.  The Veteran had moderate numbness of the right and left upper extremities.  

Muscle strength testing revealed left elbow flexion was 5/5, left elbow extension was 4/5, left wrist flexion was 4/5, left wrist extension was 4/5, left grip was 4/5, left thumb to index finger pinch was 4/5, and there was no muscle atrophy.  5/5 was defined as normal strength and 4/5 was defined as active movement against some resistance.  Reflex testing revealed the Veteran to have left biceps of 1+, left triceps of 1+, and left brachioradialis of 1+.  Sensory examination revealed normal light touch at the left shoulder, inner/outer forearm, and hand/fingers.  There were no trophic changes.

Nerve testing revealed the left radial, medial, ulnar, musculocutaneous, circumflex, long thoracic, upper radicular group, middle radicular group, and lower radicular group nerves to be normal.  EMG testing was not performed.  The peripheral nerve condition was noted to affect the Veteran's ability to work by creating problems with lifting.  

The Board finds that entitlement to an initial evaluation in excess of 10 percent disabling for left (non-dominant) arm neuritis, to include pain and numbness, is not warranted.  As discussed, the record reveals that the Veteran is right handed and, as such, the left arm is the non-dominant arm.  During the period on appeal, the Veteran's left upper extremity manifested symptoms of numbness, tingling, and pain.  The Veteran's left arm revealed 1+ reflexes in the biceps and triceps in October 1997.  The Veteran complained of problems with left upper extremity strength and movement.  However, physical examinations in March and April 2002, April 2003, and September 2007 did not reveal any decreased strength or abnormal deep tendon reflexes.  In April 2003 the Veteran was noted to have abnormal sensation in the ulnar distribution of the hands and after examination the Veteran's left ulnar neuropathy was noted to be mild.  In January 2005 the Veteran was noted to have reduced left hand sensation with normal finger motion and good grip.  In September 2007 a VA examiner stated that the Veteran had sensory loss for the 4th and 5th finger tips and noted that the Veteran may have a mild amount of ulnar neuritis.  EMG examination was noted to be normal in August 2002 and September 2007.  In February 2012 the Veteran was noted to have moderate numbness of the left upper extremity and muscle strength was noted to be 4/5 in the left elbow extension, left wrist flexion, left wrist extension, left grip, and left thumb to index finger pinch.  Reflexes were noted to be reduced at 1+ in the left biceps, left triceps, and left brachioradialis.  Sensory examination was normal.  Nerve testing was noted to be normal.  At no point during the period on appeal did the Veteran's left arm neuritis manifest symptoms that were moderate in degree.  At no point during the period on appeal did the Veteran's left upper extremity manifest muscle atrophy.

Although the evidence reveals some moderate numbness, minimal reduced muscle strength, and minimal reduced reflexes predominantly reported at a February 2012 VA medical examination, as the Veteran's disorder does not manifest any electrodiagnostic evidence of ulnar neuritis and has consistently been referred to as mild in the claims file, consideration of the Veteran's disorder as a whole reveals symptomology that most nearly approximates no more than mild ulnar neuritis of the left arm.  As such, entitlement to an initial evaluation in excess of 10 percent disabling for left (non-dominant) arm neuritis, to include pain and numbness, is denied.

Finally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321.  The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.  

The Veteran does not meet the criteria for an evaluation in excess of 10 percent disabling for left (non-dominant) arm neuritis, and there are no aspects of this disability not contemplated by the schedular criteria.

Furthermore, the Board finds no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service-connected disability at issue, that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. 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 id.


ORDER

Entitlement to a higher initial rating for left (non-dominant) arm neuritis, to include pain and numbness, currently rated as 10 percent disabling, is denied.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs