Citation Nr: 1311387 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-24 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of severed radial nerve of the right thumb, status-post repair. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2010, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In April 2012, a VA examiner found that the Veteran's service-connected residuals of severed radial nerve of the right thumb, status-post repair, could be playing a role in his moderate right carpal tunnel condition. In a February 2013 brief, the Veteran's representative argued that separate evaluations should be assigned for the Veteran's current disability as the original injury was to the ulnar and radial nerves of the Veteran's right hand. As these issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's residuals of severed radial nerve of the right thumb, status-post repair, were manifested by pain, decreased sensation, decreased hand dexterity, impairment of joint function, and limited range of motion. CONCLUSION OF LAW The criteria for a disability rating of 30 percent for residuals of severed radial nerve of the right thumb, status-post repair, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.124a Diagnostic Code 8514 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issue decided herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a July 2006 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the July 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and VA treatment records have been obtained and associated with the claims file. The Veteran was provided a VA examination in August 2006 in connection with the issue decided herein. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In May 2011, the Board remanded the Veteran's claim for an additional VA examination to determine the current severity of the Veteran's residuals of severed radial nerve of the right thumb, status-post repair. The record shows the Veteran underwent VA examination in July 2011, and the July 2011 VA examiner also provided an addendum opinion in April 2012. The record demonstrates that the VA examiners reviewed the pertinent evidence of record and the Veteran's lay statements. Additionally, the examinations provided sufficient information to decide the issue on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the examinations to be sufficient and adequate for rating purposes, and therefore, the RO substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the record shows the VLJ noted the elements that were lacking to substantiate the claim for a higher disability rating and asked questions to ascertain the extent of any current symptoms or treatment for the disability. The Veteran was also assisted at the hearing by an accredited representative from Disabled American Veterans. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim for a higher disability rating, and the Veteran, through his testimony, demonstrated that he had actual knowledge of those elements. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 20 percent rating for his service-connected residuals of severed radial nerve of the right thumb, status-post repair, under Diagnostic Code 8514, which contemplates paralysis of the musculospiral (radial) nerve. The evidence reflects that the Veteran is right-handed; accordingly, his right thumb is a major extremity. Under Diagnostic Code 8514, a 70 percent rating is warranted for complete paralysis of the major extremity as demonstrated by drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; and/or total paralysis of the triceps occurs only as the greatest rarity. 20, 30, and 50 percent ratings are warranted for mild, moderate, or severe incomplete paralysis, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8514. The term "incomplete paralysis" is defined as indicating 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 words mild, moderate, and severe are not defined in the rating criteria. Rather than applying a mechanical formula, all of the evidence must be evaluated such that adjudications are equitable and just. 38 C.F.R. § 4.6 (2012). The Veteran asserts that he is entitled to a disability rating in excess of 20 percent for his service-connected residuals of severed radial nerve of the right thumb, status-post repair. The Veteran testifies that his disability is manifested by sharp pain, tingling, swelling, loss of sensation, numbness, hand cramps, loss of control, and the inability to hold onto things, and he states that it affects activities of his daily living. On VA examination in August 2006, the Veteran denied pain, weakness, stiffness, swelling, heat, instability, and locking. On physical examination, active range of motion of the metacarpophalangeal joint was limited to 30 degrees (out of 90), to include with repetition, and active range of motion of the proximal interphalangeal (PIP) joint was limited to 80 degrees (out of 100), to include with repetition. There was no increased pain with range of motion testing, and strength was five out of five. The right thumb was completely numb to light touch and pain, with no sensation in the index and middle finger and decreased sensation in the ring and small finger. The Veteran was able to palmarly abduct the thumb. X-ray examination revealed no osseous abnormalities, and there were no signs of any boney injury from a history of amputation. The diagnosis was status post right thumb injury, and the VA examiner found there was impairment of joint function and pain with use. However, there was no weakened movement, no excess fatigability with use, and no incoordination within the joint. In July 2011, the Veteran underwent additional VA examination in connection with his claim. The Veteran reported his right hand was numb from mid-line to the radial edge and that the numbness was on both the dorsal and ventral surfaces of the hand. He reported the numbness extended just superior to the wrist joint and stated that he had new distribution of pain and tingling running from the thumb and wrist to his lateral shoulder. A history of an overall decrease in hand strength was denied, although a history of a decrease in hand dexterity was noted. Other symptoms included pain and limited motion in the thumb, index, and long fingers. Physical examination revealed normal ranges of motion in the distal interphalangeal joints, PIP joints, and metacarpal phalangeal joints of the index finger and long finger. There was no objective evidence of pain on active range of motion in the ring finger, little finger, or thumb. There was limitation of motion of the ring finger but not of the little finger. No objective evidence of pain and no additional limitation of motion following repetitive motion were demonstrated in the ring finger, little finger, or thumb. There was no gap between the right thumb pad and the fingers. There was no amputation, no ankylosis, no deformity, and no decreased strength noted. The Veteran reported decreased dexterity for writing and other fine motions (sensitivity) as well as dropping objects. The VA examiner diagnosed status post hand trauma and neuropathy of the right hand with residuals and found the Veteran's right thumb disability had significant effects on his usual occupation. Specifically, there was decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and pain. The disability had a mild effect on chores and dressing but no effect on shopping, exercise, sports, recreation, traveling, feeding, bathing, toileting, or grooming. A July 2011 peripheral nerves examination showed decreased vibration sensitivity and decreased pain/pinprick sensitivity of the medial and radial nerves located in the ulnar half of the right hand and digits 1, 2, and 3, with normal position sense, light touch, and no dysesthesias. Muscle strength and tone were normal, and there was no muscle atrophy. Tinel's sign was negative bilaterally, and Phalen's maneuver was positive in the right hand only. In April 2012, the examiner who performed the July 2011 VA examination reviewed the claims file and provided an addendum opinion. The VA examiner opined that it was most likely that 50 percent of the Veteran's right hand symptoms were caused by his service-connected nerve damage and 50 percent of the Veteran's right hand symptoms were caused by his poorly controlled diabetes mellitus. Upon review of the evidence, the Board finds a 30 percent rating is warranted for the Veteran's residuals of severed radial nerve of the right thumb, status-post repair. Throughout the pendency of the appeal, the Veteran's service-connected disability was manifested by pain, decreased sensation, decreased hand dexterity, impairment of joint function, and limited range of motion. In addition, the Board is cognizant that the Rating Schedule is meant to reflect the average impairment of earning capacity resulting from service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Here, it was noted that the Veteran's right thumb disability had significant effects on the Veteran's usual occupation, as there was decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and pain. The disability also had a mild effect on chores and dressing. Therefore, the Board finds a 30 percent rating is warranted for moderate incomplete paralysis of the musculospiral (radial) nerve under Diagnostic Code 8514. As to whether the Veteran meets the criteria for a higher evaluation, the Board notes that the record does not demonstrate objective evidence of reduced strength, muscle wasting, or disuse atrophy. While the term "severe" incomplete paralysis of the musculospiral (radial) nerve is not defined by regulation, the Board nonetheless finds that it must amount to more than the adverse symptomatology documented by the VA examiners. In these circumstances, the Board finds that the Veteran's symptoms of pain, decreased sensation, decreased hand dexterity, and limited range of motion do not equate to severe incomplete paralysis of the musculospiral nerve. See 38 C.F.R. § 4.124a. In August 2006, physical examination revealed active range of motion of the metacarpophalangeal joint was limited to 30 degrees, to include with repetition, active range of motion of the PIP joint was limited to 80 degrees, to include with repetition, and strength was five out of five. In addition, the Veteran was able to palmarly abduct the thumb. In July 2011, there was no objective evidence of pain on active range of motion or additional limitation of motion following repetition in the ring finger, little finger, or thumb. There was no gap between the right thumb pad and the fingers. There was no amputation, no ankylosis, no deformity, and no decreased strength noted. Muscle strength and tone were normal, there was no muscle atrophy, and Tinel's sign was negative. Additionally, the July 2011 VA examiner opined that the Veteran's right thumb condition only contributed to 50 percent of his hand symptoms, whereas the other 50 percent was due to his nonservice-connected diabetes mellitus. Therefore, the Board finds that a rating in excess of 30 percent for severe incomplete paralysis of the musculospiral (radial) nerve must be denied under Diagnostic Code 8514. This is true throughout the pendency of the appeal, and therefore, the Board need not consider staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As demonstrated above, the Board has also considered whether the Veteran's right thumb disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45 (2012). Although the evidence reflects decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and pain, physical examination in August 2006 revealed no increased pain with range of motion testing. Although there was evidence of impairment of joint function and pain with use, there was no weakened movement, no excess fatigability with use, and no incoordination within the joint. In July 2011, there was no objective evidence of pain on active range of motion or additional limitation of motion following repetition in the ring finger, little finger, or thumb. As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned rating, and a rating greater than 30 percent is not warranted. The Board has considered the Veteran's complaints regarding the effects of his service-connected residuals of severed radial nerve of the right thumb, status-post repair, on his daily life, to include his testimony regarding sharp pain, tingling, swelling, loss of sensation, numbness, hand cramps, loss of control, and the inability to hold onto things. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the criteria for a disability rating of 30 percent, but no more, have been met. However, because the preponderance of the evidence is against a rating in excess of 30 percent, the benefit of the doubt is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. Here, the schedular rating in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of paralysis of the musculospiral (radial) nerve, but those symptoms are not present in this case. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's residuals of severed radial nerve of the right thumb, status-post repair, throughout the pendency of the appeal. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule, and no extraschedular referral is required. ORDER Entitlement to a 30 percent disability rating for residuals of severed radial nerve of the right thumb, status-post repair, is granted. REMAND The May 2011 Board Remand directed that the RO provide the Veteran a VA medical examination to determine the nature and etiology of his hearing loss disability. Thereafter, the RO was to readjudicate the claim of entitlement to service connection for bilateral hearing loss. Review of the claims file reflects that the Veteran underwent VA examination in July 2011 for his bilateral hearing loss. However, the record does not demonstrate that the RO readjudicated the claim following the examination. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). As the RO did not readjudicate the claim of entitlement to service connection for bilateral hearing loss following the July 2011 VA examination, that issue must be returned to the RO so that this can be accomplished. Additionally, the Board finds that the July 2011 VA examination is inadequate because the rationale for the opinion is insufficient. The rationale for the opinion that the Veteran's bilateral hearing loss was not related to service was that hearing was normal at separation and that the Veteran had some post service noise exposure as a truck driver and police officer post-service. This opinion appears to rely primarily on the absence of hearing loss at separation, rather than addressing the question of whether the Veteran's hearing loss is related to active military service, which could potentially be true even without a disability at separation. A new examination with a more complete rationale is required. Accordingly, the issue of entitlement to service connection for bilateral hearing loss is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner other than the one who conducted the July 2011 examination to determine the nature and etiology of his bilateral hearing loss. All necessary tests must be conducted and a copy of the claims file and this remand must be provided to the examiner in conjunction with the examination. The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss is related to service, to include his noise exposure in service. A complete rationale must be provided for any opinion offered, and the examiner should note that the absence of hearing loss in service, by itself, is not a sufficient rationale on which to base a negative opinion. 2. Then readjudicate the claim of entitlement to service connection for bilateral hearing loss, taking into consideration all evidence added to the claims file since the May 2011 Board Remand. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided with a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs