Citation Nr: 1326358 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-00 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left upper extremity radiculopathy prior to November 7, 2012. 2. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy after November 7, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from May 1982 to September 2004, including service in Southwest Asia from January 1991 to May 1991. Among his awards and decorations, he is the recipient of the Combat Infantry Badge and the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge in February 2008. A transcript of the hearing is of record. This case was previously remanded by the Board in January 2009, September 2010, and March 2012 for further development. During the pendency of the Veteran's appeal, the Board notes that an increased evaluation of 10 percent for radiculopathy of the left upper extremity was granted effective October 1, 2004 (the date following discharge from service), and an increased evaluation of 20 percent was granted effective November 7, 2012. The U.S. Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarded a higher rating but less than the maximum available benefit, does not abrogate the appeal. Id. Accordingly, the Board has recharacterized the issues on appeal to account for these changes. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. Throughout the entire appeal period, the Veteran's left upper extremity radiculopathy has been manifested by symptoms of radiating pain, numbness/tingling in the fourth and fifth digits of the left hand, diminished left biceps reflexes, and weakened left shoulder abduction due to pain; the disability more nearly approximates moderate, but not severe, incomplete paralysis of the ulnar nerve and moderate, but not severe, incomplete paralysis of the circumflex nerve. CONCLUSIONS OF LAW 1. Prior to November 7, 2012, the criteria for a 20 percent rating, but no higher, for left upper extremity radiculopathy affecting the ulnar nerve have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). 2. After November 7, 2012, the criteria for a rating in excess of 20 percent rating for left upper extremity radiculopathy affecting the ulnar nerve have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). 3. Throughout the entire appeal period, the criteria for a separate 10 percent rating, but no higher, for left upper extremity radiculopathy affecting the circumflex nerve have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8518 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant appeal. 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. See 38 C.F.R. § 3.159(b)(1) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court also made clear that such notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the RO sent the Veteran letters in November 2004 and May 2006 that complied with § 5103 notice requirements outlined above. The Federal Circuit and the U.S. Court of Appeals for Veterans Claims have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Because the November 2004 letter also provided VCAA notice for the underlying claim for service connection for left upper extremity radiculopathy, no additional notice is needed under VCAA with regard to this issue. Further, although Dingess notification was sent after the grant of service connection, the RO subsequently readjudicated the matter in a statement of the case and supplemental statements of the case. The Board therefore finds that the notification requirements of the VCAA have been satisfied, and any timing defect has been cured. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the Veteran's claims has been identified and obtained to the extent possible. In this regard, the RO obtained post-service VA treatment records. Additionally, the Veteran submitted private treatment records and statements on his behalf. The Veteran also provided testimony at the February 2008 Board hearing. In this regard, the Court has held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). During the February 2008 hearing, the undersigned adequately identified the issue on appeal, and information was solicited regarding the nature and severity of the Veteran's left upper extremity disability. See Board Transcript (Tr.) at pp. 11-13, 21, 24, 31-33 (discussing the type, duration, and severity of left arm symptoms). Additionally, information was solicited at the hearing about any additional evidence that might be available that had not been submitted. See Tr. at pp. 14-15 (asking the Veteran to identify any doctors who have treated his disability). Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. Further, the Veteran in this case was provided with multiple VA examinations with regard to his left upper extremity radiculopathy. In fact, the Board remanded this case in March 2012 to supplement the concerns noted with the previous April 2009 VA examination and addendum. Subsequently, a VA examination was conducted in July 2012, and an independent medical opinion was obtained in February 2013. The Board finds that, collectively, these reports are adequate for rating purposes and that a remand for another VA examination is unnecessary. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). The Board acknowledges the representative's statement of May 2013 indicating that the Veteran's "condition has continued to deteriorate warranting the increased evaluation in excess of 20 percent." This statement, in essence, sets forth the representative's argument that the Veteran's disability is worse than currently rated; it does not, however, allege that there has been a worsening since the last VA examination was conducted in July 2012. Accordingly, these examinations are sufficient so as to facilitate an informed assessment of the Veteran's disability throughout the appeal period, and there is no duty to obtain yet another VA examination. See 38 C.F.R. §§ 3.327, 4.2 (2012). The Board is also satisfied that there has been substantial compliance with the Board's prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order.). With respect to the January 2009 remand, a subsequent VA examination was conducted and the most recent February 2013 opinion adequately addresses flare-ups. With regard to the September 2010 remand, the request for a supplemental statement of the case was fulfilled. Finally, with respect to the most recent March 2012 remand, the July 2012 VA examination and February 2013 opinion assessed neurological and range of motion testing, flare-ups, the presence of paralysis, and the Veteran's subjective statements. Although the July 2012 VA examiner did not review the claims file, the February 2013 did and offered an opinion as to the extent and severity of the Veteran's neurological impairment. Thus, the Board is satisfied that there has been substantial compliance with all prior remand directives, and the Board may proceed to adjudicate the claim at this time. II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In this case, the Veteran contends that his left upper extremity disability is of such severity so as to warrant a disability rating in excess of 10 percent prior to November 7, 2012, and a rating in excess of 20 percent thereafter. At the outset, the Board notes that the Veteran is appealing the initial disability rating assigned for his disability. As such, the claims require consideration of the entire time period involved and contemplation of staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran's disability is rated under Diagnostic Code (DC) 8515. This DC is located in 38 C.F.R. § 4.124a under the category heading "Diseases of the Peripheral Nerves" for the median nerve. For all diseases of the peripheral nerves, the rating schedule instructs: The term "incomplete paralysis," with this and other 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. § 4.124a, Diseases of the Peripheral Nerves (2012). As an initial matter, the Board notes that it is unclear why the Veteran's radiculopathy was rated under DC 8515, the code pertaining to the median nerve, because throughout the appeal period, the fourth and fifth digits of the Veteran's hand were affected. Based on the digits affected, the February 2013 independent medical examiner identified ulnar nerve abnormalities; significantly, no mention was made of the median nerve being affected. Therefore, the Board finds that DC 8516, the code pertaining to the ulnar nerve, is the most appropriate code for rating his service-connected disability. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (stating that service connection "is not severed simply because the situs of a disability-or the Diagnostic Code associated with it-is corrected to more accurately determine the benefit to which a veteran may be entitled"); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (stating that the Board must provide an adequate statement of reasons or bases for its selection of a diagnostic code and explain why other diagnostic codes are not reasonably analogous). Because the Veteran in this case is right-hand dominant (see Tr. at p. 24), his left upper extremity disability affects his minor, non-dominant side. Accordingly, under DC 8516, for a minor (non-dominant) side, the evidence must demonstrate moderate incomplete paralysis of the ulnar nerve for a 20 percent disability rating, and severe incomplete paralysis for the next-higher 30 percent rating. 38 C.F.R. § 4.124a. A maximum, 50 percent rating is warranted for complete paralysis. Id. After carefully reviewing the evidence of record, the Board finds that, throughout the entire appeal period, the Veteran's left upper extremity radiculopathy was manifested by symptoms more nearly approximating moderate incomplete paralysis of the ulnar nerve. In this case, the Veteran was granted a 20 percent rating for effective November 7, 2012, but the evidence reflects that he complained of substantially similar symptoms in his January 2005 VA examination as he did at his most recent July 2012 examination (which findings were later reviewed in a February 2013 addendum opinion that determined that the Veteran's radiculopathy was moderate in its severity). Significantly, even in 2005, the Veteran noted that he felt radiating pain across the shoulder, arm, and a burning sensation into the fourth and fifth fingers of the left hand. He also described tiredness or weakness both during this examination, though upper extremity strength was noted to be normal at that time, and during his February 2008 hearing. Significantly, the April 2009 VA examination noted similar statements and stated that pin-prick sensation was slightly less sharp on the left and forearm generally. Given the similarity of subjective symptoms throughout the course of the appeal, as well as objective evidence of decreased sensation in the left upper extremity noted prior to November 7, 2012, the Board finds that radiculopathy more nearly approximated a moderate nerve disability throughout the appeal period. Thus, resolving doubt in the Veteran's favor, he meets the criteria for the assignment of a 20 percent prior to November 7, 2012. The Board has also considered whether his neurological symptoms warrant a higher rating for "severe" incomplete paralysis under Diagnostic Code 8516 throughout the appeal period (both prior to and after November 7, 2012), but finds that his symptoms have been no more than moderate. The Board fully acknowledges the symptoms of radiating pain, numbness/tingling in the fourth and fifth digits of the left hand, diminished left biceps reflexes, and decreased pinprick sensation. Nonetheless, even considering these symptoms, the Veteran has shown good strength and function of the left upper extremity throughout the entire appellate period. In this regard, the January 2005 physical examination noted normal muscle strength of the upper extremity against resistance. In April 2009, full range of motion of the fingers was shown and it was noted that the Veteran had a very strong grip; based on the assessment, the VA examiner noted "mild" radiculopathy based on intermittent symptoms to the left upper extremity. A March 2012 private evaluation acknowledged weakness in his left opponens (4-5/5) muscle and absent left biceps reflexes, but physical examination conducted at the July 2012 VA examination showed 5/5 strength in the proximal and distal groups in the upper extremities and "almost normal sensation." Thus, the Board finds that despite the pain, numbness, and weakness, the Veteran nonetheless maintained a substantial degree strength and sensation of the left upper extremity. In addition, most recently, in the February 2013 addendum, after reviewing the claims file, clinical file, and treatment records, it was opined that "radiculopathy is AS LEAST AS LIKELY AS NOT moderate[] in its severity." The Board places significant probative value on the February 2013 assessment of "moderate" radiculopathy; the examiner took into account the Veteran's reported symptoms and described a progressive neurological deficit of the left upper extremity with parethesias and dysethesia of the fourth and fifth fingers and diminished left biceps reflex. Based on the review, the examiner stated that the subjective complaints of left radiculopathy and upper extremity weakness were consistent with radiographs. As a whole, in reviewing the evidence, the Board finds that the demonstrated functional ability maintained by the left upper extremity, coupled with the fact that the VA examinations described the Veteran's disability as "moderate" at worse, does not support a finding of severe, incomplete paralysis of the ulnar nerve. As such, throughout the entire appeal period, a disability rating in excess of 20 percent is not warranted for left upper extremity radiculopathy. The Board has also considered whether the Veteran is entitled to a separate compensable rating under any other relevant DCs. According to DC 8518, the circumflex nerve affects abduction of the arm, outward rotation strength, and deltoid and teres minor muscles. Because the Veteran has repeatedly identified left shoulder symptoms, and these symptoms are not contemplated by the ulnar nerve rating, the Board indeed finds that a separate compensable rating is warranted for moderate, incomplete paralysis of the circumflex nerve. In this regard, the Veteran described tiredness/weakness of the left shoulder on abduction, and the February 2013 opinion also relied on indications in the records that there is a loss of shoulder strength secondary to pain. The Board notes, therefore, that a 10 percent rating is warranted under DC 8518. The 10 percent rating, however, is the maximum rating warranted by the evidence of record because "severe" incomplete paralysis has not been shown. The Board finds it significant here that the Veteran's symptoms of tiredness/difficulty lifting the left arm have affected the Veteran's abduction to a small degree. See, e.g. June 2012 VA examination (noting "some weakness in the left shoulder due to pain. The left [s]houlder abdu[cti]on is 5-/5."). Moreover, the Board acknowledges that weakness of 4-5/5 of the opponens muscle noted on the private evaluation of March 2012. However, it was stated that the Veteran had "normal and symmetrical strength in his deltoid, biceps, triceps, wrist extensor, grasp, interossi, pronator, supinator, and internal and external rotator muscles." Again, notwithstanding complaints of radiating pain, weakness, and absence of bicep reflexes, it cannot be said that the Veteran's symptoms are more nearly approximate of "severe" circumflex nerve impairment, especially with the functional capacity still maintained by the Veteran's shoulder regardless of pain/weakness. Accordingly, a 10 percent, but no higher, evaluation is warranted under this DC. Nor is a separate compensable rating for limitation of range of motion or functional impairment of the shoulder, fingers, or other aspect of the left upper extremity warranted under 38 C.F.R. § 4.71a, the Schedule of Ratings for the Musculoskeletal System. The Veteran expressly denied range of motion problems during his February 2008 hearing (see Tr. at p. 13), and the July 2012 and February 2013 VA reports noted "5-/5" left shoulder abduction with only mild to moderate weakness of the left shoulder due to pain. Again, grip, strength, and function were not shown to be substantially impaired. Such evidence weighs against any functional impairment beyond that which is already contemplated by the above-granted ratings under DCs 8516 and 8518. 38 C.F.R. § 4.71a, therefore, cannot be the basis for either a higher or a separate rating without pyramiding. See 38 C.F.R. §§ 4.14, 4.25(b) (2012); Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In conclusion, the Board finds that the Veteran's disability warrants a 20 percent, but no higher, throughout the appeal period for moderate incomplete paralysis of the ulnar nerve under DC 8516. In addition, the Board finds that a separate, 10 percent rating, but no higher, under DC 8518 for moderate incomplete paralysis of the circumflex nerve is also warranted. The appeals are granted to this extent. III. Extraschedular and Employability Considerations The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. "[I]nitially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of 38 C.F.R. § 4.124a expressly contemplate the impairment caused by the ulnar and circumflex nerves based on varying degrees of severity. Here, the Veteran's complaints of weakened abduction, pain and numbness of the fourth and fifth fingers, and overall radiating pain and/or buzzing of the left upper extremity are encompassed in the rating criteria's evaluation for moderate nerve impairment. The Board acknowledges that the Veteran has stated that his symptoms were made worse by desk work. See April 2009 VA examination and December 2009 addendum. Notwithstanding his complaints, however, it cannot be said that these are symptoms that are not contemplated by the evaluation assigned moderate nerve impairment, especially since the DCs at issue here allow for a higher rating when a higher degree of impairment is shown, i.e. when the evidence demonstrates "severe" nerve impairment. Accordingly, the Board finds that his symptoms are indeed contemplated by the schedular criteria of DC 8516 and 8518. As the rating criteria reasonably describe the Veteran's left upper extremity radiculopathy symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In addition, the Veteran has not asserted, and the evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected left upper extremity radiculopathy. To the contrary, evidence, such as the December 2009 VA addendum, reflected that the Veteran performed at times an excess of paper/desk work. As such, the Board finds that it need not further address whether a total disability based on individual unemployability (TDIU) is established. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Prior to November 7, 2012, a 20 percent rating, but no higher, for left upper extremity radiculopathy affecting the ulnar nerve is granted, subject to governing criteria applicable to the payment of monetary benefits. After November 7, 2012, a rating in excess of 20 percent for left upper extremity radiculopathy affecting the ulnar nerve is denied. Throughout the entire period on appeal, a separate 10 percent rating, but no higher, for left upper extremity radiculopathy affecting the circumflex nerve is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs