Citation Nr: 1333390 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-19 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from October 1, 2009, for right ulnar neuropathy. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from February 1992 to May 1997 and from June 1992 to November 2006. He had additional unverified service from April 2008 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, wherein the Veteran was, among other things, granted service connection for right ulnar radiculopathy, evaluated as noncompensably disabling, effective from November 18, 2006. The Veteran disagreed with the initially assigned disability rating. During the pendency of the appeal, the Veteran's disability was recharacterized as right ulnar nerve neuropathy, secondary to entrapment, status post surgical release, and a 10 percent rating was assigned from November 18, 2006, to November 17, 2008, from December 1, 2008, to July 6, 2009, and from October 1, 2009. Temporary total ratings were assigned for the intervening periods under the provisions of 38 C.F.R. § 4. 30. In a December 2010 decision, the Board determined that increased ratings for right ulnar neuropathy were not warranted prior to October 1, 2009, but remanded for further development the issue of entitlement to an initial rating greater than 10 percent for that disability for the period beginning on October 1, 2009. The issue of entitlement to TDIU was also remanded. Upon completion of the requested development, the RO, in an April 2013 rating decision, increased the Veteran's right ulnar neuropathy rating to 30 percent, effective from October 1, 2009. In a supplemental statement of the case (SSOC) issued that same month, the RO denied a rating in excess of 30 percent from October 1, 2009, and denied entitlement to TDIU. The matters were returned to the Board in September 2013. Because less than the maximum available benefit for a schedular rating was awarded for the Veteran's right ulnar neuropathy, the claim remains properly before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Since October 1, 2009, the Veteran's service-connected right ulnar neuropathy has been manifested by pain, numbness, tingling, and subjective complaints of decreased grip strength and endurance approximating no worse than moderate incomplete paralysis of the ulnar nerve. 2. At no time have the Veteran's service-connected disability evaluations met the threshold rating requirements for an award of TDIU. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for service-connected right ulnar neuropathy have not been met for the period since October 1, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 85-998516 (2013). 2. The criteria for an award of TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claim of service connection for right ulnar neuropathy was granted in November 2007, and he was assigned a disability rating and effective date in that decision. As his current claim with respect to his schedular rating for right ulnar neuropathy stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled with respect to that claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the issue of entitlement to TDIU, the RO sent to him a letter dated in December 2010 that notified him that to be entitled to a TDIU rating, the evidence must show that his service-connected disabilities prevented him from performing the mental and/or physical task required to obtain or maintain substantially gainful employment. The letter further informed him of the threshold rating requirements of 38 C.F.R. § 4.16(a) and of the requirements for entitlement to a rating of TDIU on an extra-schedular basis. The letter also advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include relevant records not held by any Federal agency. The letter also included the notice elements required by Dingess, supra, for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the December 2010 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a). Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were fulfilled. The Board is also satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were fulfilled. In that regard, the Board finds that all available evidence pertaining to the Veteran's claim has been obtained. The evidence includes VA examination reports, VA outpatient treatment records, the Veteran's vocational rehabilitation file, and statements by the Veteran. The Veteran has not indicated that there are outstanding records relevant to the issue on appeal that VA should have obtained, nor is the Board aware of any. The Veteran was afforded several VA examinations in connection with the issues currently before the Board. The VA examiners indicated that the claims folder had been reviewed and they took into account the Veteran's subjective complaints. The examination reports contain detailed information regarding the Veteran's symptomatology related to his right ulnar neuropathy and the impact of his service-connected disabilities on his ability to work. Upon review of the examination reports and the VA treatment records, the Board is satisfied that the claims folder contains sufficient evidence by which to evaluate the Veteran's employability and the severity of his right ulnar neuropathy during the relevant time periods. Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations in connection with the matters decided herein, which comply with the terms of its prior remands, and the duty-to-assist requirements have therefore been met. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268 (1998). II. Disability Rating - Right Ulnar Neuropathy Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). "Where there is a question as to which of two evaluations shall be applied, 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 (2013). As noted in the introduction, the question for consideration is the propriety of the evaluation assigned since October 1, 2009. Evidence relevant to this issue shows that in July 2009, the Veteran under surgery for right elbow ulnar nerve release and submuscular transposition. A VA treatment record dated on October 13, 2009, notes complaints of pain to the right elbow and back. It was indicated that the Veteran had improved since the transposition and that nerve conduction testing was improved, but not normalized. The Veteran had subjective numbness in the ring and small finger and complained of daily tingling. He was seen for follow-up in December 2009, at which time he indicated a slight improvement. He was still having some numbness and noted pain directly over the right elbow on palpation. An electromyography was abnormal, but showed improvement since the prior study. An occupational therapy note dated that same month recorded the Veteran's complaints of numbness and tingling and his assertion that he would occasionally wake up at night on account of pain. In June 2010, it was noted that the Veteran was having much less numbness since his prior visit in December 2009 and that he had a full range of motion. The assessment at that time was that his right ulnar neuropathy had resolved. A VA peripheral nerves examination was conducted in January 2011. It was noted that prior nerve conduction studies showed a slowing of the ulnar nerve, improved after the July 2009 surgery. The Veteran himself stated his belief that his condition was improving, but indicated ongoing numbness in the ulnar nerve distribution of the right hand. He also endorsed decreased grip strength and endurance. Sensory examination was normal except for light touch, which evidenced a subjective decrease at the lateral aspect of the right hand and 4th and 5th digits. Right grip strength was decreased to handshake and intrinsic finger muscle strength testing was normal. Paralysis, neuritis, and neuralgia were absent. In October 2012, the Veteran requested a new VA examination, which examination was conducted in February 2013. The examiner noted the Veteran's complaints of daily pain, with twice weekly flare-ups, and numbness into his 4th and 5th digits. The Veteran also reported difficulty with grip strength, stating that he often dropped things and had difficulty shifting the dump truck that he drove. He also noted that his arm would go numb if he rested it on the armrest in the truck and reported difficulty typing. The examiner indicated that the Veteran was right hand dominant. Symptoms attributable to his peripheral nerve disability included moderate to severe pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right upper extremity. Muscle strength was normal and there was no evidence of atrophy. There was some decrease in right grip strength, but the examiner indicated a voluntary/spurious component to that, as the Veteran was able to hand pump a sphygmomanometer against resistance without difficulty. Tested reflexes were present, but hypoactive, and sensory examination was normal, save for some decreased sensation to light touch on the right hand. Trophic changes were also not noted. Upon examination of the Veteran and consideration of the evidence of record, the VA examiner stated his opinion that the veteran had incomplete paralysis, moderate in severity, of the right ulnar nerve. The Veteran's service-connected right ulnar nerve neuropathy has been evaluated during the relevant time period as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8599-8516. The Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be "built-up" as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, miscellaneous diseases, and the last two digits will be "99" for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27 (2013). In this case, the RO has determined that the DC most analogous to the Veteran's right ulnar neuropathy is DC 8516, which pertains to paralysis of the ulnar nerve. Under DC 8516, and relevant to evaluating the Veteran's major (dominant) extremity, a 10 percent evaluation is assigned for mild incomplete paralysis; a 30 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis, manifested by the "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist. 38 C.F.R. § 4.124a, DC 8516 (2013). 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. Id. The Board notes that words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. 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 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. See 38 C.F.R. §§ 4.2, 4.6 (2013). In determining the appropriate evaluation for the Veteran's right ulnar neuropathy, the Board finds particularly probative the February 2013 VA examiner's assessment that the Veteran's disability resulted in "moderate" incomplete paralysis of the ulnar nerve, which corresponds with the criteria for a 30 percent disability rating. In this regard, the Board notes that the Veteran himself indicated a worsening of symptoms during the appeal period, which would suggest that his disability was no than moderate in degree prior to the February 2013 VA examination. In fact, in June 2010 it was felt as though the Veteran's ulnar neuropathy had resolved. Additionally, the Board does not find the Veteran presents with a severe disability picture. His main symptoms have been pain, numbness and tingling, and decreased grip strength. While the Veteran may experience fatigue on extended use, such as when writing or typing for a prolonged time, objective testing has demonstrated normal muscle strength and although his grip strength was decreased to handshake, the examiner felt there to be a voluntary/spurious component to that, as the Veteran was able to hand pump a sphygmomanometer against resistance without difficulty. Overall, the objective evidence suggests that nerve involvement is wholly sensory, as muscle weakness has not been objectively shown, which calls for, at most, a moderate rating. 38 C.F.R. § 4.124a. Even considering the Veteran's subjective complaints, the Board does not find that decreased strength on prolonged use rises to the level of a severe disability, as fatigue has not been alleged to result in an inability to grasp, write, or type. The Board also finds no evidence suggestive of complete paralysis. Indeed, the Veteran does not have a "griffin claw," there is no evidence of atrophy or an inability to spread or fully extend the fingers or adduct the thumb, and weakened flexion of the wrist has not been shown. Given the evidence of record, the Board finds that the Veteran's disability most nearly approximates the criteria for a 30 percent rating, as his disability picture is not one of a severe disability nor is there evidence of complete paralysis. Accordingly, a rating greater than 30 percent is not warranted at any point since October 1, 2009. In finding that a rating greater than 30 percent is not warranted for the Veteran's right ulnar neuropathy, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating in excess of 30 percent for the Veteran's disability at any point since October 1, 2009. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013). The above determination is also based upon consideration of applicable rating provisions. While the criteria does not specifically set forth symptoms indicative of moderate or severe incomplete paralysis of the ulnar nerve, the Board finds that the Veteran's complained of symptoms do not take his disability outside of the norm of his specific disability. Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the "the available schedular evaluations for [his service-connected right ulnar neuropathy] are inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2013). III. TDIU A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2013). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). If a Veteran does not meet the threshold rating requirements to establish eligibility for a schedular rating of TDIU, he or she may still be entitled to TDIU on an extra-schedular basis if it is established that the veteran is unable to secure or follow substantially gainful employment as a result of the effect of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In the instant case, the Veteran is service connected for right ulnar neuropathy; degenerative disc disease with L5-S1 disc bulge and left leg radiculopathy; a left ankle disability; tinnitus; a right shoulder disability; status post fracture of the right 4th metacarpal; and scars on the left forearm and index finger, which disabilities have been variously rated over time. Notably, the Veteran was in receipt of a combined evaluation of 70 percent from January 25, 2011, to July 1, 2013, during which time his right shoulder disability was rated as 30 percent disabling and his left ankle disability was rated as 10 percent disabling. (His right shoulder rating was thereafter reduced to 10 percent.) Both of those disabilities affect a single body system and, as such, under the "common etiology" provision of 38 C.F.R. § 4.16(a) and by application of the combined ratings table found at 38 C.F.R. § 4.25, the minimum percentage requirements for a rating of TDIU were satisfied during that time period. See 38 C.F.R. § 4.16(a). However, at no other time has the Veteran been in receipt of a combined evaluation of 70 percent or of a schedular evaluation of at least 60 percent for any singular disability, even considering the common etiology principles. Regardless of whether or not the Veteran's disability ratings meet the minimum percentage requirements for a rating of TDIU, entitlement to TDIU hinges on whether a veteran is unable to secure or follow substantially gainful employment as a result of his or her service-connected disability or disabilities In determining whether a veteran is indeed unemployable, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Regarding the Veteran's employability, the Board notes that the Veteran himself has never alleged that he is unemployable. Rather, the Board previously found that the issue of entitlement to TDIU was raised by the report of a September 2007 VA examination wherein it was noted that the Veteran was at that time unemployed and unable to find work in law enforcement due to his medical condition. Specifically, the Veteran asserted that he had been unable to pass the physical agility test required for law enforcement jobs due to his right shoulder limitations. With regards to the Veteran's employability, the VA examiner indicated that the Veteran's "employment would be best served in a sedentary line of work." In April 2008, the Veteran was provided with an orientation to Chapter 31 Vocational Rehabilitation and Employment. His Vocational Rehabilitation records indicate a serious employment handicap, but it was determined that the Veteran's rehabilitation was indeed feasible. A June 2009 VA treatment record notes that the Veteran was employed as a pipefitter from 2002 to 2007 and that he had worked for the previous four months as a propane truck delivery person, but was then a full time student hoping to get a degree in civil engineering. In January 2011, the Veteran was afforded a general medical examination for the purpose of determining the occupational effects of his service-connected disabilities. It was noted that the Veteran was then presently a full time college student. The examiner found that the Veteran's degenerative disc disease of the lumbar spine would not impact sedentary employment, as there was no evidence that the disability caused any significant interference with his schooling. It was indicated that future employment involving heavy lifting could be impacted. Similar findings were made with regard to the Veteran's right shoulder disability. The examiner noted that the Veteran's left ankle was essentially normal, with some pain, and would not interfere with employment, and that the right 4th finger fracture would not impact employment. The examiner also noted that the ulnar nerve disability did not result in a loss of motor function and thus would not interfere with employment. Regarding the Veteran's right ulnar neuropathy, the February 2013 VA examiner indicated it would limit the Veteran's ability to do certain jobs, but did not state that it rendered him unemployable. The February 2013 VA examiner also noted that the Veteran was then employed as a dump truck driver, but was slower with some jobs due to his shoulder disability and was unable to do some of the "better paying" jobs. Based on the evidence of record, the Board finds that a rating of TDIU is also not warranted on an extra-schedular basis, as the evidence fails to demonstrate that the Veteran is indeed unemployable due to his service-connected disabilities, whether considered alone or in combination with one another. Although the Veteran was previously unemployed, the September 2007 examiner did not suggest that the Veteran was unemployable. Rather, the examiner indicated that the Veteran was better suited for sedentary work. Further, it was determined that vocational rehabilitation was feasible and there is no suggestion that while the Veteran was attending school on a full-time basis that he was unemployable. The January 2011 VA examiner noted some possible future impact on non-sedentary employment, but indicated that the Veteran could work in a sedentary capacity given that he was able to attend school full time. Further, the evidence currently indicates that the Veteran is employed. Although the Veteran has stated that he is unable to take some of the higher paying jobs, the fact remains that he is able to work and there is no indication that his current employment is not substantially gainful. Again, the Board notes that the Veteran himself has never alleged that he is unemployable and the evidence fails to suggest otherwise. Accordingly, the Board finds that a rating of TDIU must be denied and it is not necessary for the case to be submitted to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b) based on the fact that the evidence of record indicates that the Veteran is employable. Although the objective evidence demonstrates that the Veteran may be limited in the type of employment he would be able to engage in, it simply does not support a finding that the Veteran is unemployable. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, supra; 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to an initial disability evaluation in excess of 30 percent for service-connected right ulnar neuropathy from October 1, 2009, is denied. Entitlement to TDIU is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs