Citation Nr: 1318018 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-18 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating greater than 10 percent prior to February 5, 2013, and greater than 30 percent thereafter, for service-connected left upper extremity neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to April 1989 and from July 1989 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (Court) on July 27, 2012, which granted a Joint Motion for Partial Remand, vacated the Board's December 2011 decision, and remanded the Veteran's claim to the Board for action consistent with the Joint Motion. The issue initially arose from a November 2006 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board for additional development in January 2013. The requested development has been substantially completed. However, in December 2011, the Board also remanded the issue of entitlement to separate ratings for neurological abnormalities of the lower extremities associated with the Veteran's service-connected low back disability. There continues to be no indication that this development has been completed in the claims folder or electronic records file. The RO must ensure that all requested development is completed before that issue is returned to the Board. FINDING OF FACT The Veteran's left upper extremity neuropathy has been manifested by significant numbness and tingling of the left arm, hand, and fingers with incomplete paralysis of the radial, median, ulnar, and musculocutaneous nerve and moderate carpal tunnel throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial 30 percent rating, and not higher, for service-connected left upper extremity neuropathy have been met as of January 3, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties A. Duty to Notify and Assist This appeal arises from the initial rating assigned for the Veteran's left upper extremity neuropathy pursuant to the RO's November 2006 grant of service connection for that disability. Therefore, there is no duty to provide additional notice as the purpose of 5103(a) notice has been fulfilled where service connection was found to be warranted. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a service-connection claim has been substantiated, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to downstream elements). VA has obtained the Veteran's service records and VA treatment records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). All reasonable efforts to obtain the Veteran's relevant private treatment records have been made. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159 (c)(1), (3). On remand, the Veteran was asked to identify and authorize the release of additional treatment records in July 2010 and January 2013. He submitted additional records on his own behalf in August 2011, but did not otherwise respond to the July 2010 or January 2013 requests. Therefore, VA has fulfilled its duty to make reasonable efforts to assist the Veteran in obtaining his private records. See id. The Veteran was provided with a contemporaneous and thorough VA examination in February 2013, and the examiner submitted an addendum two days later following review of the Veteran's electromyography (EMG) test results. The examiner also reviewed the medical records in the claims folder; considered the Veteran's medical history, including the Veteran's lay reports of the course of his disability and his symptomatology; and described the Veteran's disability in sufficient detail. Therefore, VA has fulfilled its duty to provide the Veteran with a VA examination that is adequate for rating purposes. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an opinion is adequate where it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail to allow for a fully informed evaluation of the claimed disability); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see e.g. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n1 (Fed. Cir. 2006) (noting that a medical opinion is inadequate where the examiner fails to consider whether the Veteran's lay statements presented sufficient evidence of the etiology of the claimed disorder). As there is no reasonable possibility that any further assistance would result in any additional benefit to the Veteran, no prejudice can result from adjudicating the Veteran's claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007); Forcier v. Nicholson, 19 Vet. App. 414, 421-22 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). B. Substantial Compliance with Remand Orders VA has a duty to ensure substantial compliance with the terms of remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (defining substantial compliance). In June 2010, the Board directed the AMC to seek sufficient identifying information and authorization to obtain the Veteran's treatment records from his neurologist and to provide him with a VA examination. The examiner was directed to conduct all necessary tests and to state whether the Veteran has paralysis or whether the involvement is wholly sensory. If the former, the examiner was directed to indicate whether the paralysis was mild, moderate, severe, or complete, and explain why. The examiner was also directed to give a complete explanation for any opinion expressed. The July 2012 Joint Motion for Partial Remand found that the July 2010 VA examination report completed in response to this remand directive was inadequate as it did not clearly indicate whether the Veteran had paralysis or whether the involvement was wholly sensory. On remand from the Court, the Board remanded the claim for further development consistent with the findings in the Joint Motion in January 2012. The January 2012 remand order directed the AMC to schedule the Veteran for another VA neurological examination to obtain clear medical opinions on whether the Veteran's left upper extremity neuropathy involved paralysis or was limited to wholly sensory involvement. As before, if the examiner found any paralysis, the remand directive requested a description of the extent of the paralysis, i.e., mild, moderate, severe, or complete, and an explanation for that finding. Any necessary tests or studies were to be conducted. The remand order also directed the AMC to request information on any additional records from the Veteran and to obtain any additional records properly identified and authorized for release. Letters dated July 2010 and January 2013 notified the Veteran of the need to provide VA with adequate identifying information and authorization to obtain his relevant treatment records, including the records specifically identified in the June 2010 remand order, and included the pertinent authorization forms. The February 2013 VA examiner reviewed the EMG results, and the findings of the physician who conducted the test, and provided specific findings on the existence of any paralysis and its severity the Board requested. Further, the examiner clearly stated that the Veteran's deficits were wholly sensory and provided an explanation for that finding based on the relevant data. The Veteran's claim was readjudicated in a February 2013 supplemental statement of the case (SSOC) and a March 2013 SSOC. Therefore, as all requested actions have been completed, the Board is satisfied that there has been substantial compliance with the Joint Motion for Partial Remand granted in the April 2012 Court Order and the Board's June 2010 and January 2013 remand directives. See Dyment, 13 Vet. App. at 146-47; see also D'Aries, 22 Vet. App. at 105 (finding that a remand directive that requests information from a medical examiner is substantially complied with where the examiner provides information sufficient to resolve the issue for which the medical information was requested). As there has been substantial compliance with all remand instructions, no prejudice to the Veteran will result in adjudicating this appeal. II. Increased Initial Schedular Rating for Left Upper Extremity Neuropathy In November 2006, the RO granted service connection for left upper extremity neuropathy and assigned a 10 percent rating, effective January 3, 2006, under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8515, for disability of the median nerve. In February 2013, the RO issued an additional rating decision increasing the Veteran's rating to 30 percent, effective February 5, 2013, under Diagnostic Code 8515. The Veteran contends that his symptomatology corresponds to a greater degree of impairment than is reflected by the ratings currently assigned, particularly in consideration of the problems his symptoms cause with his ability to perform his occupational tasks as an ophthalmic assistant. Disability ratings are based on the average impairment of earning capacity resulting from disability, and evaluation of the level of disability present does include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate diagnostic codes in 38 C.F.R. Part 4 identify the various disabilities. Selection of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. The Board must explain in its decision the diagnostic code under which the claim is evaluated, and explain any inconsistencies that result from shifting diagnostic codes throughout the adjudication process in order to avoid confusion as to the standards and criteria used to evaluate the claim. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In order to properly make this determination, it is essential to trace the medical history of the Veteran when considering the severity of the disability so the rating accurately reflects the elements of disability present, particularly where the initial disability rating for a service-connected disorder is at issue. See Fenderson v. West, 12 Vet. App. 119 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.41. Where the evidence demonstrates distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, or different stages of disability, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, the Veteran's initial disability rating for left upper extremity peripheral neuropathy has already been staged by the AMC's February 2013 rating decision. Therefore, the Board's evaluation will include a determination of whether the stages identified, and corresponding disability evaluations assigned, are justified by the evidence. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis 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. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, VA should consider the applicability of the radicular group ratings. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, NOTE. Here, a VA examiner initially diagnosed the Veteran with persistent neuropathy involving the left thumb and index finger, secondary to shoulder surgery, with primarily sensory neuropathy, in August 2006. In a November 2007 examination report and February 2008 addendum, a different VA examiner diagnosed sensory ulnar neuropathy, "more likely" secondary to his degenerative disorders of the spine than his left shoulder. The July 2010 VA examiner diagnosed left ulnar neuropathy. In the February 2013 VA examination report and addendum, the VA examiner diagnosed left upper extremity neuropathy, including, by EMG, carpal tunnel syndrome of the left hand without any radiculopathy. Examination showed impairment of the radial nerve, median nerve, ulnar nerve, and musculocutaneous nerve, and EMG testing showed abnormalities of the median nerve and a diagnosis of carpal tunnel syndrome. Carpal tunnel syndrome is a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling parasthesias in the fingers and hand, sometimes extending to the elbow. See Dorland's Illustrated Medical Dictionary 1850 (28th ed. 1994). While the evidence shows several diagnosed nerve disorders under the general category of left upper extremity neuropathy, all diagnoses were provided to account for the same reported symptoms of numbness and tingling, primarily from the elbow through the hands, with diminished sensation and progressively increasing weakness. As the Veteran cannot be compensated twice for the same symptomatology and the varying diagnoses of record do not account for distinct symptoms or resulting impairment, separate ratings will not be assigned for each affected nerve. See 38 U.S.C.A. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993); 38 C.F.R. § 4.14. Here, the primary involvement, as demonstrated by EMG testing, is with the median nerve. Therefore, even though the February 2013 examination report indicates combined nerve involvement, the Veteran's neuropathy of the left upper extremity is most appropriately rated under Diagnostic Code 8515, as the extent of his symptoms do not relate to impairment outside of the parts of the arm described under the rating criteria for peripheral neuropathy of the median nerve. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, NOTE; see also Pernorio, 2 Vet. App. at 629. Under Diagnostic Code 8515, a 70 percent rating is assigned for complete paralysis of the median nerve for the dominant hand, shown where the hand is inclined to the ulnar side with the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (also called "ape hand"); pronation is incomplete and defective with an absence of flexion of the index finger, feeble flexion of the middle finger, and inability to make a fist because the index and middle fingers remain extended; inability to flex the distal phalanx of the thumb because of defective opposition and abduction of the thumb, at right angles to the palm; flexion of the wrist is weakened; and there is pain with trophic disturbances. 38 C.F.R. § 4.124a. Where there is incomplete paralysis of the dominant hand, a 50 percent rating is assigned where the degree of incomplete paralysis is severe, a 30 percent rating is assigned where the degree of incomplete paralysis is moderate, and a 10 percent rating is assigned where the degree of incomplete paralysis is mild. Id., Diagnostic Code 8515. The Veteran's reported symptoms concern the impairment in functioning of his dominant left hand caused by numbness and tingling and the effect this has on his employment due to his difficulty with finely coordinated hand movements. As described by his wife in an August 2011 statement, the Veteran's struggles with his left arm numbness as illustrated by his need to constantly squeeze his left hand to restore feeling. With regard to occupational impairment, the Veteran has consistently described an inability to handle and hold on to objects. See, e.g., February 2013 VA examination report; April 2011 statement; June 2008 statement; November 2007 VA examination report; August 2006 VA examination. The Veteran's reported symptoms describing the extent of his occupational impairment have been consistent throughout the appellate period. At the August 2006 VA examination, he described difficulty handling the small instruments necessary to perform his job at an eye clinic. He required breaks lasting a few minutes at a time until the numbness and tingling subsided and he no longer felt like he was about to drop the instruments. He also reported problems with dropping things while working ophthalmic assistant at the November 2007 VA examination. In a June 2008 statement, the Veteran continued to describe the occupational impairment caused by his neuropathy of the left upper extremity; specifically, problems with writing, assisting with minor surgical procedures, and handling small instruments. The Veteran explained that he actually holds a device on the patient's eye during certain tests which risks giving the patient a corneal abrasion or, even worse, altering the measurement affecting the outcome of the patient's cataract surgery if errors are made due to his disability. In April 2011, the Veteran reported that he was missing work and could no longer perform certain procedures, and the February 2013 VA examiner noted that the Veteran's peripheral nerve condition impacts his ability to measure eye pressure and perform a variety of other tasks requiring dexterity as an ophthalmic technician. Conversely, the objective examination findings available from the February 2013 VA examination and March 2013 addendum seem to indicate that his symptoms have increased in severity. However, if the previous examination reports are read in conjunction with the Veteran's reported symptoms on the degree of occupational impairment he has experienced, any apparent differences in the severity of the Veteran's service-connected peripheral neuropathy of the left upper extremity seem to result more from differences in the approaches of the different examiners as opposed to actual differences in the degree of disability resulting from the Veteran's upper left extremity neuropathy, as shown by the lack of a predictably progressive trend in the severity of the findings. See 38 C.F.R. § 4.2. Accordingly, the Board does not find that staged ratings are warranted in this case. The March 2013 EMG report and addendum show an abnormal Compound Muscle Action Potential (CMAP) test and an abnormal Sensory Nerve Action Potential (SNAP) test. The February 2013 VA examination report addendum describes the Veteran's diagnosed carpal tunnel syndrome as "moderate." Furthermore, resolving all doubt in favor of the Veteran, the extent of occupational impairment experienced by the Veteran and the degree of sensory impairment experienced generally, as shown throughout the record, indicate a degree of impairment that is more accurately described as moderate, as opposed to mild. His motor function has showed no impairment throughout the appellate period, but sensory neuropathy has been consistently demonstrated. Furthermore, the consistently demonstrated sensory neuropathy is associated with significant occupational impairment throughout the appellate period. While the examiner initially described the extent of incomplete paralysis of the radial, median, ulnar, and musculocutaneous nerve as "mild" in the February 2013 VA examination report, on review of additional studies to include the February 2013 EMG data, an addendum was prepared and the examiner ultimately described the Veteran's carpal tunnel syndrome as "moderate." Therefore, the Board finds that the Veteran is entitled to a 30 percent disability rating for moderate incomplete paralysis of the median nerve throughout the period on appeal. However, the degree of incomplete paralysis associated with the Veteran's peripheral nerve disability of the left upper extremity cannot be described as severe. The resulting impairment is sensory in nature, as shown by the symmetry in strength between his right and left hands and his ability to make a fist, extend the fingers, spread the fingers, flex the fingers, and perform other movements on examination without difficulty. Therefore, as the Veteran's service connected neuropathy of the left upper extremity is productive of sensory impairment only, entitlement to a rating higher than 30 percent is not warranted as the degree of incomplete paralysis associated with the Veteran's left upper extremity neuropathy does not rise to the level of severe. Full consideration has been given to the other applicable diagnostic codes, but no higher rating for incomplete paralysis of moderate severity is available for the dominant hand under Diagnostic Codes 8514, 8516, or 8517, or any other diagnostic code pertaining to upper extremity neuropathic disabilities that is applicable to the Veteran's service-connected disability. As discussed above, consideration of the rating codes pertaining to the radicular groups is not warranted as the extent of the Veteran's symptoms does not exceed the symptomatology used to evaluate median nerve impairment. Furthermore, the February 2013 EMG conclusively showed the absence of any radicular involvement. III. Extraschedular Ratings The rating schedule represents as far as is practicable the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). If the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, and the Veteran's disability picture exhibits factors like marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). The symptoms associated with the Veteran's left upper extremity neuropathy are not shown to cause any impairment that is not already contemplated by the rating criteria. Diagnostic code 8513 specifically relates to the type of impairment caused by numbness and tingling of the hands and arms, which includes the lack of fine motor coordination and instability that the Veteran relates to his occupational difficulties. Furthermore, while the Veteran's disability indisputably causes interference with employment, this interference was explicitly considered when assigning his schedular rating and a 40 percent disability rating contemplates some degree of occupational impairment in nearly every cases. Therefore, the Board finds that the rating criteria reasonably describe the impairment caused by the Veteran's left upper extremity neuropathy and referral for consideration of an extraschedular rating is not warranted in this case. ORDER Entitlement to an initial 30 percent rating, and no higher, for left upper extremity neuropathy is granted as of January 3, 2006 subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs