Citation Nr: 1316011 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-17 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected ulnar neuralgia, right elbow. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1988 to October 2008. This appeal to the Board of Veterans Appeals (Board) arises from an October 2008 rating action decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for ulnar neuralgia, right elbow, evaluated as 10 percent disabling, with an effective date for service connection of September 1, 2008. FINDING OF FACT The Veteran's service-connected ulnar neuralgia, right elbow, is shown to have been productive of symptoms that include some pain, and tingling of the little and ring fingers, but not a limitation of elbow flexion to 100 degrees, a limitation of elbow extension to 75 degrees, pronation lost beyond the last quarter of arc with the hand not approaching full pronation, and not mild incomplete paralysis, neuritis, or neuralgia, of the lower, middle, or upper radicular group, of all radicular groups, or of the musculospiral nerve (radial nerve), or by moderate incomplete paralysis of the medina or ulnar nerve, or by severe incomplete paralysis of the musculocutaneous nerve, the circumflex nerve, or the long thoracic nerve. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for service-connected ulnar neuralgia, right elbow, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Codes 8510-8719 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Initial Evaluation The Veteran asserts that he is entitled to an increased initial for his service-connected right elbow disability. He essentially asserts that he has pain and other symptoms that warrant an increased initial evaluation. He argues that he underwent over two years of physical therapy for his condition during service, that he has been diagnosed with cubital tunnel syndrome, and that he must adjust the use of his computer mouse at his job due to right elbow and wrist pain, and constant tingling in his right little finger. See Veteran's letter, received in January 2012. The Board notes that as this letter states essentially the same arguments as detailed in the Veteran's March 2009 written statement, there is no need for a Supplemental Statement of the Case or waiver of RO consideration. See 38 C.F.R. §§ 19.37(b); 20.1304(c). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As for the history of the disability in issue, the Veteran's service treatment records show that in November 2006, the Veteran reported a one-year history of right elbow pain aggravated by push-ups and pull-ups, with no history of trauma. The assessment was medial epicondylitis. He was placed on a home therapy program. He subsequently received ongoing treatment, with a notation of intermittent use of a towel elbow flexion block splint at night. He had good progress as of February 2007, but his symptoms recurred in November 2007. In February 2008, he was afforded an EMG (electromyogram) which showed evidence for a mild right ulnar mononeuropathy at the elbow. An April 2008 report of medical history notes a diagnosis of ulnar/cubital tunnel syndrome that was improving, and which was treated with a brace/splint, with no current use of medication. A VA pre-discharge examination report, dated in July 2008, shows that the Veteran complained of chronic right elbow pain, with limitations on his ability to lift, push and pull. On examination, there was no evidence of deformity. The right elbow had flexion to 130 degrees, and extension to 0 degrees. Forearm pronation and supination was to 90 degrees, respectively. After repetitive flexion and extension activity of the right elbow testing for pain, weakness, and fatigability there was no change in the range of motion or pain pattern that was described prior to activity. The relevant diagnosis was chronic ulnar neuralgia. In October 2008, the RO granted service connection for ulnar neuralgia, right elbow, evaluated as 10 percent disabling, with an effective date for service connection of September 1, 2008. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.71a, DC 5206, a 20 percent evaluation is warranted where elbow flexion of the major or minor extremity is limited to 90 degrees. Under 38 C.F.R. § 4.71a, DC 5207, a 20 percent rating is warranted for: "Forearm, limitation of extension" where elbow extension of the major or minor extremity is limited to 75 degrees. Under 38 C.F.R. § 4.71a, DC 5208, a 20 percent rating is warranted where elbow flexion of the major or minor extremity is limited to 100 degrees, and elbow extension of the major or minor extremity is limited to 45 degrees. Under 38 C.F.R. § 4.71a, DC 5213, limitation of pronation of the major or minor arm is rated as 20 percent disabling when motion is lost beyond the last quarter of arc and the hand does not approach full pronation. The normal range of motion for the elbow is flexion to 145 degrees and extension to 0 degrees. Normal pronation is from zero to 80 degrees, and normal supination is from zero to 85 degrees. 38 C.F.R. § 4.71, Plate I. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the medical evidence of record, the Veteran is left-handed and as such, minor, as opposed to major, disability ratings are applicable. 38 C.F.R. § 4.69 (2012). The only relevant post-service medical evidence consists of a VA examination report, dated in May 2009, which shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported an intermittent history of symptoms with remissions, and that he used an elbow brace at night. He stated that he limited the amount of weight he lifted, and that he had had a good response to treatment, with no side effects. He said that he did not lift weights, or do push-ups or pull-ups. The report notes that there was no history of hospitalization or surgery related to the right elbow. The Veteran reported that his pain was a constant "4" on a scale of one to ten, with tingling 50 percent of the time. The examiner noted that the Veteran did not seek any further treatment following his February 2008 EMG. On examination, muscle strength was 5/5, and the muscle examination was normal. A sensory examination of the right upper extremity was normal. There was no muscle atrophy. There was no abnormal muscle tone or bulk. Reflexes were 2+ at the right tricep, bicep, and brachioradialis. No function of any joint was affected. The Veteran was unable to run his right arm to a supination position, and it was noted that he was left-handed. The report notes that the Veteran works for an aircraft manufacturer, and that he writes, types reports, and tests equipment by pushing buttons, and that there was no time lost from employment during the last 12-month period. The etiology of the problem was noted to be overuse, lifting weights, and pull-ups for his job. There was nerve dysfunction, but no paralysis, neuritis, or neuralgia. There were no significant effects on his occupation, and no effects on his usual daily activities. The diagnosis was right mild ulnar mononeuropathy at the elbow with residual constant achiness and tingling of the two smallest fingers. The Board finds that an initial rating in excess of 10 percent is not warranted. The aforementioned findings as to the ranges of motion in the right elbow do not show that the Veteran's right elbow has a limitation of flexion to 100 degrees, a limitation of extension to 75 degrees, or that pronation has been lost beyond the last quarter of arc with the hand not approaching full pronation. Accordingly, the criteria for a rating in excess of 10 percent under 38 C.F.R. § 4.71a, DC's 5206, 5207, 5208, and 5213 have not been met. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). However, the findings do not support an increased evaluation due to functional loss. In this regard, the July 2008 VA examination report notes that after repetitive flexion and extension activity of the right elbow testing for pain, weakness, and fatigability, there was no change in the range of motion or pain pattern that was described prior to activity. The May 2009 VA joint examination report shows that muscle strength was 5/5. A sensory examination and a muscle examination were normal. There was no muscle atrophy, and no abnormal muscle tone or bulk. Reflexes were 2+ at the right tricep, bicep, and brachioradialis. No function of any joint was affected. In summary, when the ranges of motion in the right elbow are considered together with the evidence showing functional loss -- to include the findings (or lack thereof) pertaining to neurological deficits, muscle strength, and the lack of evidence of muscle wasting -- the Board finds that there is insufficient probative evidence of objective pain on motion, or any other functional loss, to warrant an initial evaluation in excess of 10 percent. The Board has also considered the evidence of neuropathy, and whether a rating in excess of 10 percent is warranted under 38 C.F.R. § 4.124a, Diagnostic Codes 8510- 8719, as they pertain to nerves affecting elbow function. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DC's 8510 through 8540 (2012). Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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 bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. The words "slight," "moderate" and "severe" as used in the various diagnostic codes 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). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Briefly stated, the Veteran has reported pain, tingling, and achiness in his right upper extremity. However, the May 2009 VA examination report shows the following: the Veteran had 5/5 strength. Reflexes were 2+ at the right tricep, bicep, and brachioradialis. No function of any joint was affected. The Veteran was unable to run his right arm to a supination position. There was nerve dysfunction, but there was no paralysis, neuritis, or neuralgia. The Veteran works for an aircraft manufacturer, there was no time lost from employment during the last 12-month period. There were no significant effects on his occupation, and no effects on his usual daily activities. The diagnosis was right mild ulnar mononeuropathy at the elbow with residual constant achiness and tingling of the two smallest fingers (emphasis added). Given the aforementioned medical evidence, to include the findings (or lack thereof) as to muscle atrophy, strength, and sensation, the Board finds that it is not shown that the Veteran's neurological complications from his disability are shown to have been manifested by mild incomplete paralysis, neuritis, or neuralgia, of the lower, middle, or upper radicular group, or of all radicular groups, or of the musculospiral nerve (radial nerve), by moderate incomplete paralysis of the medina or ulnar nerve, or by severe incomplete paralysis of the musculocutaneous nerve, the circumflex nerve, or the long thoracic nerve, such that an initial evaluation in excess of 10 percent is warranted under DC's 8510-8719. Accordingly, the criteria for an initial evaluation in excess of 10 percent have not been met. As a final matter, there is no evidence of ankylosis of the elbow, impairment of the flail joint, nonunion of the radius and ulna, nonunion of the ulna with false movement, or nonunion of the upper half of the radius, to support a rating in excess of 10 percent under 38 C.F.R. § 4.71a, DCs 5205, 5209, 5210, 5211, or 5212. Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2011); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. An evaluation in excess of 10 percent is provided for certain manifestations of the service-connected right elbow disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms, and the level of functioning in the right arm. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999), and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased initial evaluation is warranted. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). This appeal involves a claim for an initial increased evaluation. Thus, although a July 2008 VCAA notice was issued for the claim for service connection for the Veteran's right elbow disability, where, as here, service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491. The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. The Veteran has been afforded two examinations. In this regard, although the most recent VA examination is dated in May 2009, the Veteran has not asserted that his symptoms have worsened since that time. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs