Citation Nr: 1321941	
Decision Date: 07/09/13    Archive Date: 07/18/13

DOCKET NO.  06-30 445	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an increased rating for residuals of a right ulnar nerve injury with ulnar anesthesia, multiple tendon transplants and scars, currently evaluated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel
INTRODUCTION

The Veteran served on active duty from September 1966 to September 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating for his service-connected right ulnar nerve injury.  The Board denied the claim in a January 2009 decision.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated January 2010, granted a Joint Motion for Remand.  In May 2010, and in October 2012, the Board remanded the claim for additional development of the record.  The case is again before the Board for appellate consideration.

In its October 2012 determination, the Board denied the Veteran's claim for service connection for residuals of a right hip injury.  Accordingly, this decision is limited to the issue set forth on the previous page.

By rating action dated February 2012, the RO granted a total rating based on individual unemployability due to service-connected disability, effective July 31, 2008.

In its May 2010 and October 2012 decisions, the Board noted that the Veteran's claim for service connection for residuals of a left foot injury had been remanded in its January 20009 decision.  A review of the record indicates that the RO has not fully complied with the directives in the Board's determination.  The attention of the RO is once again directed to this matter.


FINDING OF FACT

The Veteran has complete paralysis of the ulnar nerve.


CONCLUSION OF LAW

The criteria for a 60 percent evaluation for residuals of a right ulnar nerve injury with ulnar anesthesia, multiple tendon transplants and scars have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In light of the fully favorable finding with regard to the claim for an increased rating for residuals of a right ulnar nerve injury, no further discussion of compliance with the duties to notify and assist is warranted at this time.

Analysis 

The Board has reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

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).

The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

A 60 percent evaluation may be assigned for complete paralysis of the ulnar nerve of the major extremity; the "griffin claw deformity, due to flexor contraction of the ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened.  A 40 percent rating may be assigned for incomplete paralysis when severe.  38 C.F.R. § 4.124a, Diagnostic Code 8516.

VA outpatient treatment records disclose the Veteran was seen in November 2004.  An examination revealed reduced muscle strength of the right hand.  There was numbness of the hand and forearm on the volar/posterior aspects.  He had incomplete motor control of all digits except for the thumb.  

On VA examination in December 2004, the Veteran reported he was right-handed.  He stated he had severe loss of motor control/sensation of digits 3/4, and partial loss of control and strength of the 4th digit.  He described some involuntary movements of digits 2/3/4 and that he had some muscle spasms.  He claimed he had tingling and numbness of the fingers and hand, and he asserted he had decreased functionality.  An examination revealed a longitudinal scar from the distal elbow to the wrist.  There was a noticeable tendon from the second digit attaching to the muscle of the posterior/lateral forearm measuring about six inches.  The thumb had complete motor control, but digit 2 had only partial motor control, and was in a partial flexion contracture.  Digit 3 had better flexion/extension, but flexion was incomplete.  Digit 4 had some flexion/extension control and digit 5 had minor flexion from normal flexed contracture.  Grip strength was reduced to 3/5, and there was loss of sensation of the 4/5 digits through the metacarpals to the wrist.  Fine motor control was mostly within normal limits, as was the ability to pick up small objects.  He could button and unbutton a shirt, but this was a bit harder to do.

Records from the Office of Personnel Management have been associated with the claims folder.  It was reported in October 2004 that the Veteran was on full, unrestricted duty at the time of his separation from the United States Postal Service.  In June 2006, it was noted he had been found to be disabled for his position as mail handler due to arthritis, severed ulnar nerve with paralysis.  Another June 2006 letter shows the Veteran was approved for disability retirement.

The Veteran was hospitalized for unrelated complaints by the VA from July to August 2008.  An examination demonstrated a 30 degree flexion contracture of the right small finger proximal interphalangeal joint.  There was loss of active extensor function of the right index finger proximal interphalangeal joint and the distal interphalangeal joint.  

The Veteran was afforded a VA examination in February 2013.  The diagnoses were right ulnar neuropathy and griffin claw deformity of the right hand.  It was reported he had increasing symptoms over the previous 10 years with resultant contractures of the fingers, limited grasping ability, numbness and severe pain of the forearm.  An examination demonstrated grip was 0/5 on the right.  Pinch test was 0/5 on the right.  There was muscle atrophy at the dorsal interspaces and thenar and hypothenar eminences of the fourth and fifth fingers of the right hand.  Sensation was absent in the hand and fingers.  Trophic changes were present, with the Veteran having smooth, shiny skin over the fourth and fifth fingers.  He had complete paralysis of the right ulnar nerve.  The examiner commented the Veteran had a griffin claw deformity of his right hand with complete paralysis of the ulnar nerve, including complete loss of feeling in the ulnar distribution, flexion contractures of the fourth and fifth fingers, atrophy of the muscles of the dorsal interspaces and thenar and hypothenar eminences, loss of extension of the ring and little fingers, an inability to spread the fingers and weakened flexion of the wrist.  He added the Veteran had flexion deformities of the index and middle fingers from the tendon injuries.  Finally, the examiner stated the Veteran had limited ability to grasp with his thumb and index fingers.

As noted above, in order to assign a higher rating for the injury to the Veteran's ulnar nerve, the record must demonstrate complete paralysis.  The record establishes the Veteran had a partial flexion contracture of the second digit on the December 2004 VA examination.  Grip strength was reduced and he experienced loss of sensation.  In fact, the examiner stated the Veteran's greatest limitations were flexion contractions, loss of motor control and muscle strength of his right wrist.  

In addition, the Board observes that based on the findings of the VA examination in February 2013, the examiner indicated the Veteran had complete paralysis of the ulnar nerve.  He noted the Veteran had a griffin claw deformity.  

The findings summarize above clearly support the assignment of a 60 percent evaluation for residuals of right ulnar nerve injury.  There is no basis for a higher rating under any pertinent Diagnostic Code.



ORDER

A 60 percent evaluation for residuals of a right ulnar nerve injury with ulnar anesthesia, multiple tendon transplants and scars is granted, subject to the governing law and regulations pertaining to the payment of monetary benefits.



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs