Citation Nr: 1335875	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  93-09 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an initial rating greater than 30 percent for right ulnar neuropathy.


REPRESENTATION

Veteran represented by:	Kathy Lieberman, attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

V. Chiappetta, Counsel


INTRODUCTION

The Veteran served on active duty from September 1955 to September 1959.

This matter is before the Board of Veterans' Appeals  (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that granted service connection for right ulnar neuropathy and assigned an initial 10 percent evaluation, effective January 23, 2004.  The Veteran disagreed with the initial rating and, in a November 2006 rating decision, the RO assigned an increased initial rating of 30 percent, also effective January 23, 2004.

In March 2008, the Veteran testified before the undersigned at a hearing that was held at the RO.  A transcript of the hearing is of record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The evidence of record reflects that the Veteran's service-connected right ulnar neuropathy has been manifested by moderate incomplete paralysis from the effective date of service connection, January 23, 2004, to the present day; severe incomplete paralysis or complete paralysis of the right ulnar nerve is not shown.


CONCLUSION OF LAW

The criteria for the assignment of an initial disability rating greater than 30 percent for right ulnar neuropathy have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2013); Fenderson v. West, 12 Vet. App. 119 (1999).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 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) (2013). 

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.  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.  38 C.F.R. § 3.159(b)(1) (2013).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Because the August 2004 rating decision on appeal granted service connection for right ulnar neuropathy and assigned a disability rating and effective date for the award, statutory notice has served its purpose, and its application is no longer required.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  The Veteran has had ample opportunity to respond and supplement the record, and he has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").

Concerning the VA's duty to assist, the Veteran's service treatment records, post-service VA and private treatment records, Social Security Administration records, and his own lay statements and testimony have been associated with the claims file. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the Veteran's claim, and the Board is also unaware of any such outstanding evidence. Although the record contains some VA treatment reports that were added to the Veteran's electronic claims folder subsequent to the Agency of Original Jurisdiction's (AOJ's) last adjudication of this appeal, the Veteran has waived his right to have this case remanded to the AOJ for consideration of additional evidence in the first instance.  See the Veteran's February 27, 2013 request for expedited processing.  

There is also substantial compliance with the Board's prior remand instructions from May 2007, June 2009, February 2012 and November 2012 decisions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As noted above, the Veteran appeared for a hearing with the undersigned in March 2008, and all of his updated VA treatment records have also been obtained.  In addition, VA administered an adequate neurological examination that addressed the current severity of the Veteran's ulnar neuropathy in December 2012.  The examination report indicates that the December 2012 examiner completed all necessary testing, examined the Veteran, reviewed his claims file, and provided information adequate to evaluate the claim and responsive to the Board's prior questions.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).

The Veteran has submitted a statement since this December 2012 examination  indicating he experiences hand cramping to the point where he cannot hold a hammer, and that at times his hand cramps into a claw.  See the Veteran's April 30, 2013 Statement in Support of Claim.  Although the Veteran's representative asserts that this statement is a description of "unreported increased debilitating severity of the right ulnar neuropathy," the Veteran has in fact described such symptomatology to VA on multiple prior occasions dating as far back as 2005.  See, e.g., the August 2005 RO hearing transcript, at 5 and 10 (noting that his hand locks up on him "like a claw," and that his hand cramps up on him to the point he cannot use a hammer).  Although the Veteran correctly stated in April 2013 that a May 2012 VA examiner did not specifically identify this cramping in a May 2012 VA examination report, prior examiners have indeed identified the limitations caused by the Veteran's disability, to include his inability to do carpentry or electrical work.  See, e.g., the June 2004 VA examiner's report.  Most recently, a December 2012 VA examiner made clear in his report that he reviewed the Veteran's prior records (which would include his prior complaints of cramping and "clawing") and actually addressed such symptoms by noting that the Veteran does not exhibit "griffin claw," also known as "claw hand" defined as "flexion and atrophy of the hand and fingers."  See Dorland's Illustrated Medical Dictionary, 376 (31st ed. 2007).  

As such, the Board does not believe that the medical evidence of record in this case is too old to adequately evaluate the Veteran.  Indeed, the Veteran's April 2013 statement regarding the severity of his symptoms appears consistent with what he reported to VA on multiple occasions in the past.  The Veteran has not submitted additional medical evidence demonstrating a worsening in severity since his December 2012 VA examination, and the cramping/clawing symptoms described by the Veteran were of record upon the December 2012 VA examiner's assessment.  The Board finds that an additional VA examination is not required.

The Veteran also was provided an opportunity to set forth his contentions during the March 2008 hearing before the undersigned.  The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the March 2008 hearing, the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim for an initial increased rating for ulnar neuropathy, and sought to identify any further development that was required to help substantiate the claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
	


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Analysis

The Board notes at the outset of its analysis that in addition to ulnar neuropathy, the Veteran is also service-connected for multiple other disabilities affecting his right elbow-namely, residuals of a right radius fracture with excision of the radial head, rated 20 percent disabling, arthritis of the right elbow, rated 10 percent disabling, dorsal interosseous muscle atrophy of the right hand associated with right chronic ulnar neuropathy, rated 10 percent disabling, and a noncompensable right medial surface scar of the right elbow.  

The Board is precluded from differentiating between symptomatology attributed to two or more disabilities in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  In this case however, the December 2012 VA examiner has in fact adequately distinguished the Veteran's ulnar neuropathy symptoms from the symptoms of his other right arm disabilities, noting in pertinent part that the limitations more likely due to the Veteran's ulnar neuropathy would include "fine motor tasks such as buttoning clothes or starting a car, and holding on to objects."  The examiner also indicated that the Veteran has "discomfort due to severe numbness."  See the December 2012 VA examiner's report, at 4.  This medical assessment appears consistent with those noted throughout the record on appeal, and aligns with the Veteran's own competent descriptions of his symptoms.  The Board accordingly finds that the medical evidence of record sufficiently defines the symptoms specific to the Veteran's right ulnar neuropathy such that a decision on the merits can be made without further medical development.

The Veteran is right hand dominant.  See 38 C.F.R. § 4.69 (2013).  His right ulnar neuropathy disability is currently evaluated 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8516 (paralysis of the ulnar nerve), and this rating has been in effect since the effective date of service connection, January 23, 2004.  The evidence does not indicate, and the Veteran has not suggested that any other diagnostic code should be used or would otherwise be more appropriate.  As this appeal concerns the assignment of an initial 30 percent rating, the level of disability from the grant of service connection forward will be examined.  See Fenderson v. West, 12 Vet. App. 119 (1999).   

Diagnostic Code 8516 provides a 60 percent disability rating for the major extremity if paralysis is complete.  If paralysis is incomplete, the Diagnostic Code provides a 40 percent rating for severe incomplete paralysis in the major extremity, and a 30 percent rating for moderate incomplete paralysis.  See 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2013).  The term "incomplete paralysis," with peripheral nerve injuries, 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 the partial 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, Diagnostic Codes 8510-8730 (2013).

The evidence of record does not reflect that the Veteran's ulnar neuropathy manifested in complete paralysis of the ulnar nerve at any time during the period under review.  Notably, under Diagnostic Code 8516, "complete paralysis" is identified by the "griffin claw" deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist.  Although the Veteran has competently reported that since 2005 his hand will on occasion cramp or lock into a claw, no VA or private physician of record has identified the griffin claw deformity.  Indeed, the December 2012 VA examiner specifically ruled this deformity out.  Further, the Veteran has not exhibited loss of finger extension, an inability to spread fingers, or inability to adduct the thumb.  Although he did exhibit weakened flexion of the wrist at the December 2012 VA examination, such was described by the examiner as only "slight" in severity.  As complete paralysis of the ulnar nerve is not reflected in the record, a 60 percent disability rating under Diagnostic Code 8516 is not warranted in this case.

Having stated as much, there is no question that the Veteran's ulnar neuropathy manifests in incomplete paralysis of the ulnar nerve.  At its core, the issue in this case is whether the Veteran's incomplete paralysis most closely approximates paralysis of moderate severity, warranting the continuation of the current 30 percent rating, or paralysis that is considered severe, warranting a 40 percent rating, at any time during the period under review.  See 38 C.F.R. § 4.7 (2013).   For the reasons discussed immediately below, the Board finds that the Veteran's right ulnar neuropathy manifested in only moderate incomplete paralysis of the ulnar nerve during the entire appeal period.  

There are ample medical reports in the Veteran's physical and electronic record documenting treatment for, or examination of the Veteran's right ulnar neuropathy.  Indeed, VA examiners have assessed the severity of the Veteran's disability on six occasions since the date he filed his original service-connection claim in January 2004.  Pertinent to this appeal, the Veteran has consistently reported symptoms of hand and finger numbness, radiating pain, decreased sensation, decreased grip, and cramping of the hand to VA physicians and hearing officers.  While the Board in no way disputes that the Veteran has indeed experienced such debilitating ulnar neuropathy symptoms, the medical evidence supports a finding that only moderate incomplete paralysis of the ulnar nerve has persisted since 2004 to the present day.

At the June 2004 VA examination, the Veteran indicated that he experienced loss of sensation in the third, fourth and fifth digits of his right hand and an inability to grip things.  Decreased hand and finger sensation was identified at that time, but objective testing showed 5/5 motor strength in all planes about the right elbow and hand, and the Veteran was able to fully oppose his fingers to his thumb with no pain.  

In October 2005, the Veteran again described symptoms of pain and numbness of the right hand to a VA examiner.  That examiner determined that the Veteran had decreased grip strength that was "approximately half normal" and decreased strength at the elbow of 4/5. 

Subsequently, an August 2009 VA examiner documented the Veteran's reported prior problems with numbness, grip and pain, but also noted upon examination that the Veteran had no pain or tenderness at the elbow to palpation, 5/5 strength, and no evidence of paralysis.  Significantly, in April 2011, VA reached out to the August 2009 VA examiner a second time so that she may supplement her report with an assessment of the current nature and severity of the right ulnar neuropathy as "mild, moderate sever [sic], or severe."  See the April 2011 VA examiner's report, at 1.  After review of her own August 2009 report, the examiner stated that it was her opinion that the Veteran's right ulnar neuropathy was "moderate severe" because the condition required surgery in 2002.  See id., at 2.  Crucially however, because this examiner performed no specific neurological testing in August 2009, the Board remanded the Veteran's appeal for a new examination in February 2012. 

In May 2012, another VA examiner recognized the Veteran's complaints of right hand numbness, but identified only "mild" intermittent pain, "mild" paresthesias and/or dysesthesias, and "mild" numbness of the right upper extremity.  Grip and pinch of the right hand were both evaluated as 4/5.  Unfortunately, because the examiner did not clearly articulate the overall level of severity (mild, moderate or severe) of the Veteran's ulnar neuropathy, another remand was necessary in November 2012.

Finally, in December 2012, the Veteran appeared for his most recent examination.  A "slightly" weakened grip was identified, with "severe" numbness but "moderate" pain and paresthesias.  The Veteran was able to extend his little and ring fingers, and adduct his fingers to his thumb.  As noted above, upon review of the records and after examination and interview with the Veteran, no griffin claw deformity was identified.  Although the examiner determined that the Veteran experiences difficulty doing fine motor tasks such as buttoning clothes or starting a car and holding on to objects, as well as discomfort due to severe numbness, he ultimately classified the Veteran's ulnar neuropathy disability as one involving only "moderate incomplete paralysis" of the ulnar nerve.  See the December 2012 VA examiner's report at 4.  [The Board notes in passing that on page 10 of his report, the examiner indicated that the Veteran's right ulnar nerve was in fact "normal" and his left ulnar nerve showed "moderate incomplete paralysis."   This appears to be typographical error, as it is inconsistent with his clearly articulated conclusions noted above].

The Veteran's ongoing treatment records dated throughout the appeal period show occasional complaint for elbow pain, numbness of the fingers and hands and weakness in grip.  His descriptions of his own symptomatology are consistent with those identified by the examiners and physicians of record throughout the period under review.  As shown above, although it is clear that weakened grip, radiating pain, numbness, decreased sensation and cramping have been identified in the record since the date of his original claim, at no time have these symptoms been so debilitating in degree that medical professionals have characterized the Veteran's incomplete paralysis as more than "moderate" in severity.  In fact, the May 2012 VA examiner observed predominately "mild" symptoms, and the December 2012 VA examiner concluded that despite the presence of "severe" numbness at the time of the examination, the overall neuropathy disability manifested in only moderate incomplete paralysis.

The Veteran is certainly competent to attest to what he observes to be gradually worsening neurological symptoms affecting his right arm.  While it is possible that the Veteran's neurological symptoms may be worse in severity today than they were in 2004, at no point has the evidence demonstrated a period from 2004 to the present day where the Veteran's ulnar nerve paralysis was "severe" in degree.  As such, under Diagnostic Code 8516, the assignment of an initial rating greater than 30 percent is not warranted at any time during the period under review on a schedular basis.

The Board has also considered whether referral for an extraschedular rating is appropriate.  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as 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 Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected right ulnar neuropathy are inadequate.  As noted above, the Veteran's ulnar neuropathy primarily involves moderate incomplete paralysis of the ulnar nerve, marked by decreased sensation, numbness, weakness, cramping and pain.  Such impairment is specifically contemplated by the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8516.  Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology for his service-connected ulnar neuropathy, the second and third questions posed by Thun become moot. 

In short, there is nothing in the record to indicate that the Veteran's service-connected ulnar neuropathy caused impairment over and above that which is contemplated in the 30 percent rating that has been assigned from January 2004 to the present day.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


ORDER

Entitlement to an initial rating in excess of 30 percent for right ulnar neuropathy of is denied.



____________________________________________
Laura H. Eskenazi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs