Citation Nr: 1335928 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 95-20 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to extra-schedular consideration for weakness of the left upper extremity secondary to surgery and radiation therapy. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied a rating in excess of 10 percent for weakness of the left upper extremity secondary to surgery and radiation treatment. In a January 2004 rating decision, the RO assigned an increased rating of 20 percent effective February 18, 1994, for service-connected weakness of the left upper extremity secondary to surgery and radiation treatment. In June 2004 and March 2006, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. In April 2008, the Board denied the Veteran's increased rating claim for weakness of the left upper extremity secondary to surgery and radiation treatment on a schedular basis. The Board also found that the Veteran's service-connected weakness of the left upper extremity secondary to surgery and radiation treatment presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and referred the issue of extra-schedular entitlement to the Director, Compensation and Pension (C&P) Service, for consideration. See 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) (2013). In June 2009, the Director, C&P Service, denied the Veteran's claim for an increased rating for weakness of the left upper extremity secondary to surgery and radiation treatment on an extra-schedular basis ("extra-schedular rating claim"). In December 2009, June 2010, and April 2012 the Board remanded the Veteran's extra-schedular rating claim again to the RO/AMC for additional development. In January 2012 and June 2013, the Director, C&P Service, again denied the Veteran's extra-schedular rating claim. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records through April 2013 that are pertinent but are cumulative of evidence available in the claims file. In the most recent review of the file, the Board noted that the Veteran has received assistance and submittal of argument by representatives of the Georgia Department of Veterans Affairs, but the file did not contain the required Appointment of Veterans Service Organization as Representative (VA Form 21-22). In correspondence in August 2013, the Board requested clarification and provided an opportunity for the Veteran to appoint a representative within 30 days. No response was received. Therefore, the Board will proceed as if the Veteran is self-represented. The issues of entitlement to service connection for depression, laryngitis (claimed as loss of voice), alopecia (claimed as hair loss), and a disability manifested by facial distortion including as due to surgery and radiation treatment and left upper extremity weakness have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The issues of laryngitis, alopecia, facial distortion, and depression were referred to the RO previously in the Board's March 2006 and December 2009 remands. To date, however, none of these issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's weakness of the left upper extremity secondary to surgery and radiation therapy presents an exceptional and unusual disability picture that imposes a marked interference with employment. CONCLUSION OF LAW The criteria for an extra-schedular rating in excess of 20 percent for weakness of the left upper extremity secondary to surgery and radiation therapy are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321; 4.1, 4.3, 4.7, 4.16, 4.124a (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal As the Board is granting the claims for service connection, the claims are substantiated, and there are no further notice and assistance. Wensch v. Principi, 15 Vet App 362, 367-68 (2001). II. Factual Background The Veteran served as a U.S. Navy yeoman. While on active duty in 1982, the Veteran underwent surgery to remove a synovial cell sarcoma in her left neck. A medical board assessed the five year survival rate as 5 to 25 percent, and the Veteran underwent a course of radiation therapy of 6,000 to 6,500 rads over 7 to 8 weeks at the National Institutes of Health (NIH). The Veteran was placed on the temporary disabled retirement list and later permanently retired. Service treatment records showed that the Veteran is right handed. In April 1983 and January 1985, the RO granted service connection and a total rating from March 1983 to April 1985 and a ten percent rating thereafter for the sarcoma and surgical scar. Although she remains at risk, the cancer has been in remission since the surgery and therapy. However, in April 1985, a VA attending physician noted that the Veteran was experiencing other residuals of the radiation therapy including pain radiating down the left upper extremity. In follow-up treatment at NIH in May and September 1987, physicians noted left arm pain and left hand numbness or tingling. In October 1987, a VA physician noted that the Veteran experienced increasing left arm pain, numbness, and weakness. The physician diagnosed nerve entrapment syndrome from radiation therapy. In November 1987, an NIH neurologist noted that the Veteran was using her right arm for most activities. There was reduced muscle strength in the left shoulder and upper arm, mild loss of touch sensitivity of the entire arm, and decreased coordination and tremor of the left hand. The neurologist diagnosed brachial plexopathy as a result of radiation treatment. A plexus is a network of lymphatic vessels, nerves, or veins. The brachial plexus originates from the last four cervical spinal nerves and is composed of several ventral branches and trunks including the dorsal scapular, long thoracic, subclavius, suprascapular nerves, then branching to the medial lateral pectoral, medial cutaneous, median, ulnar radial, and other nerves. Dorland's Illustrated Medical Dictionary, 1453 (30th Ed., 2003) (hereafter Dorland's). In February 1988, a senior physician at NIH noted that the Veteran experienced "...a considerable degree of weakness in her left arm. This weakness has left her unable to perform her normal secretarial duties and has caused her significant pain as she made a valiant effort to continue to work with her disability...the weakness is unlikely to improve and may, in fact, worsen over time." The physician further noted, "She appears to perform most tasks that do not require her to use her left arm, and as long as this arm is not used, she remains pain free." In June 1988, the RO granted service connection and a 10 percent rating for weakness of the left upper extremity secondary to surgery and radiation therapy, effective in October 1987, under 38 C.F.R. § 4.124a, Diagnostic Codes 8599-8519 (1987) applicable to partial paralysis of the long thoracic nerve. The rating criteria refer to an inability to raise an arm above the shoulder level. A note under this Code advises that combined nerve injuries will be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. The long thoracic nerve was not uniquely identified in any medical report as the only affected nerve. The RO received the Veteran's claim for an increased rating in February 1994. In a March 1994 statement, the Veteran reported that she had intermittently held a series of clerical and retail jobs but was dismissed for performance issues. In July 1997, the Veteran underwent VA neurologic and orthopedic examinations. A neurologist noted the Veteran's reports of an increasing inability to use her left arm. She reported that she could hold a bed sheet and push or cradle things but was unable to perform more demanding functions because of left arm pain and weakness. On examination, motor strength and reflexes were reduced in the left shoulder, upper arm, and hand grip but there was no muscle atrophy. Joints were movable but with pain. Two days later, a VA orthopedic examiner noted that the Veteran was working as a telephone operator. Abduction of the shoulder was to 90 degrees and extension to 10 degrees limited by severe plasticity and severe pain. Range of flexion of the left elbow was 70 to 100 degrees with spasms and pain outside this range. There was a full range of motion of the wrist and fingers. X-rays of the left shoulder showed some boney changes that the examiner attributed to radiation therapy but otherwise good bone stock. The examiner noted that range of motion measurements were difficult because of spasms that were not expected of a peripheral nerve disorder but may be a central nerve injury. The examiner noted, "...I would describe this as a severe disability and [sic] unable to do any work with that side." In October 2003, a VA examiner briefly summarized the history and noted the Veteran's reports of several on-going residuals of the radiation therapy including left arm pain and thumb numbness. The examiner noted that the Veteran had "no true weakness in the arm." Nevertheless, the examiner noted that the Veteran was working as a receptionist and could answer the telephone but could not type or perform other office activities with the left arm. On examination, the examiner noted extreme pain on all left arm movements. Abduction and forward flexion of the left shoulder was from zero to 45 degrees. The Veteran maintained her elbow flexed at 140 degrees but could move to zero degrees with extreme pain. Pronation and suppination were limited to 45 degrees. Wrist motion was limited but fingers were opposable to the thumb with slight loss of grip strength. Sensation was normal except for the thumb. The physician noted the absence of muscle atrophy that would be expected of a patient who immobilized an arm in a fixed position. The physician diagnosed brachial plexus neuralgia. Another VA examiner in August 2004 also noted that the Veteran held her left arm in a fixed, flexed position close to the chest and used oral and surface medication for pain. In an August 2004 statement, the Veteran reported that she sought treatment with injections for pain on several occasions in an emergency room. She reported that she often missed work in her clerical position and was unable to type, lift, or work as quickly as required. In January 2004, the RO granted an increased rating of 20 percent for the left upper extremity disability, effective the date of receipt of claim for an increased rating, and again assigned the rating under Diagnostic Code 8519. In March 2006, the Board remanded the claim in part to obtain a current VA examination. In May 2007, a VA physician noted a review of the claims file and the Veteran's report of continued left extremity pain, radiating from the neck through the arm and forearm to the hand and fingers. The Veteran also reported tremors that were not observed during the examination. The Veteran was employed as a telephone switchboard operator. On examination, the Veteran demonstrated intermittent and brief normal strength with cogwheeling. In a September 2007 addendum, the physician noted that the Veteran reported and he observed abduction and flexion of the shoulder to 180 degrees, internal and external rotation of 90 degrees, and zero to 45 degrees flexion of the elbow, all with no pain. The physician noted no paralysis and only "alleged" weakness and tremors that were not observed. The physician described the degree of functional impairment as "mild." Treatment encounter entries by a VA social worker and primary care provider in October and November 2007 refer to the Veteran's reports of continued severe left arm pain and an inability to type or file documents as a court clerk. The Veteran reported that she expected to be fired because she was unable to keep up with work assignments and was seeking employment in which her duties were limited to answering the telephone. In April 2008, the Board denied a schedular rating in excess of 20 percent for the left upper extremity disability. The Board noted that the rating under Diagnostic Code 8519 for the long thoracic nerve was the highest schedular rating available absent evidence of complete paralysis. The Board considered ratings under musculoskeletal and muscle injury Codes and found that a higher rating was not warranted based on the lay and medical evidence of record including the VA examination reports in 1997, 2003, and 2007. The Board also found that the medical reports did not specify any other particular nerve causing paralysis to a degree warranting a higher rating. However, the Board found that extra-schedular consideration was warranted. The Board noted that the Veteran's left arm weakness presented both a medically and legally complicated issue and that there was credible evidence of an unusual disability picture with impairment of earning capacity. The Board cited the following evidence. The July 1997 VA examiner found, "I would describe this as a severe disability and [sic] unable to do any work with that side." The Veteran has reported throughout the record that her left arm disability significantly interferes and/or interferes with her ability to work as a secretary, clerk, or receptionist. She reported to the July 1997 examiner that she cannot really use the arm, other than to "sort of push things or sort of cradle things." A February 1998 oncologist stated that the weakness in the Veteran's left arm is unlikely to improve and may worsen over time. Significantly, he also stated the Veteran's weakness has "left her unable to perform her normal secretarial duties and has caused her significant pain as she made a valiant effort to continue to work with her disability," adding that she will have to find work "which does not require use of her left arm." He described the arm as "non-functional." She told the October 2003 examiner that she was only able to answer phones and could not do any other office activities because of her left arm. She reported that she is unable to type with the left arm or button shirts. Only the 2007 examiner noted that the symptoms were mild with no pain and a full range of motion of the left side joints, and his report was significantly disparate from all other assessments. The Board remanded the claim for consideration of an extra-schedular rating by the Director, Compensation and Pension Service (Director), in the first instance. In June 2009, the Director denied an extra-schedular rating. The Director summarized the results of the VA examinations in 1997, 2003 and 2007 including the lay and medical statements regarding employment related dysfunction. Although the Director acknowledged that the disability was serious, he concluded that the 20 percent schedular evaluation under Diagnostic Codes 8519 or 8619 (the latter for neuritis of the long thoracic nerve) was adequate as they addressed the shoulder symptoms including reflex, sensory, atrophy, and pain, at times excruciating, citing 38 C.F.R. § 4.123 (2009). The Director also cited the 2007 examiner's description of the degree of impairment as mild. The Director denied an extra-schedular total rating based on individual unemployability because the Veteran remained employed. In December 2009, the Board again remanded the claim, noting that the Director did not address the evidence of employment impairment noted by VA clinicians and the Veteran in October and November 2007, and directed the RO to request records of duties, performance, and attendance from current and past employers as identified by the Veteran. In correspondence in January 2010, the RO requested from the Veteran the identity of current and past employers, but no response was received. The RO continued to deny an extra-schedular rating in a March 2010 supplemental statement of the case, concluding that there was no evidence of interference with employment or frequent periods of hospitalization. In June 2010, the Board remanded the claim. The Board again summarized the lay and medical evidence since 1997 of employment impairment including the clinical notes in October and November 2007. As the most recent VA examination was more than two years old with indications of worsening symptoms, the Board directed a current VA examination to include an assessment of employment capacity. Records of care from a private primary care physician from May 2010 to September 2011 showed ongoing treatment for chronic pain. The physician noted that the Veteran was working but has limited or no activity after work or on weekends. In an April 2012 letter, the physician noted that the Veteran's new job starting in 2010 required less physical activity but with a cut in pay. She performed her duties at a limited speed and had difficulty with simple tasks such as filing. In October 2011, a VA physician performed an examination using a Disability Benefits Questionnaire for shoulder and arm conditions. The physician diagnosed left "frozen shoulder" as a residual of the cancer surgery. This is a popular but misleading term for adhesive capsulitis. Dorland's at 1691. Adhesive capsulitis is an inflammation between the joint capsule and the peripheral articular cartilage of the shoulder, characterized by pain, stiffness, and limitation of motion. Dorland's at 288. The physician noted range of motion measurements for the right and left shoulder that were clearly reversed in error. Although he noted a full range of motion on the left and very limited range of motion on the right, the remainder of the report showed that all symptoms were on the left side. Left shoulder flexion and abduction were 15 and 10 degrees respectively. Inconsistently, the physician noted that repeat motion could not be performed but then noted flexion and abduction on repeat testing was 15 and 15 degrees respectively. He further noted additional functional loss due to pain and atrophy of disuse without quantification. Muscle strength of the left shoulder was three on a scale of one to five. The physician noted that functional impairment was not so diminished as to be equivalent to an amputation. The physician found that there was employment impairment because of very limited shoulder mobility. He found mild sensory and weakness of the left hand and lower arm but that the hand could be used normally. The physician also evaluated the impact of cervical spine disease, but this disorder is not service-connected nor does the record contain any evidence that this disease is a residual of the cancer surgery. In January 2012, the Director reviewed the file and summarized the results of the October 2011 examination but did not recognize the error in range of motion measurements. The Director continued to conclude that a 20 percent rating under Diagnostic Code 8519 adequately contemplated the Veteran's left upper extremity disability and that there was no marked interference with employment or frequent hospitalization. The RO repeated the analysis in a February 2012 supplemental statement of the case. In April 2012, the Board remanded the claim, noting the conflicting assessments of the Veteran's disability between the 2007 and 2011 VA examinations. The Board directed an additional medical assessment to determine whether the left upper extremity weakness presented an exceptional or unusual disability picture. In April 2012, a VA physician noted a review of the claims file. The physician accurately summarized the history of surgery and radiation treatment and acknowledged the 2007 and 2011 examiner's reports. The Veteran continued to report continuous left upper extremity pain with exacerbating pain when attempting to use the left arm. The Veteran held the left shoulder in a fixed position to reduce the pain and loss of sensation. The physician observed that the Veteran was clumsy with the left hand and stated that if she attempted to hold a piece of paper, she experienced shaking. She reported that the last time she attempted to hold an object in the left hand was in 1999 when she lost control of a glass of water. The Veteran has been prescribed a variety of oral, injected, and surface medications for pain. The physician noted that it was not possible to fully examine the left upper extremity because of the Veteran's pain. The physician concluded that the Veteran did not have complete paralysis of the long thoracic nerve but that the left upper extremity weakness did present an exceptional or unusual disability picture. Records of care of chronic pain at a private medical facility from June to October 2012 were obtained and associated with the claims file. Clinicians consistently noted the Veteran's report of severe constant upper left extremity pain. On one occasion in April 2010, a clinician noted moderately limited range of motion of the left shoulder, elbow, and wrist but a normal range of motion of digits of the hand. However, motor strength and tone of all muscles of the extremity were normal but with decreased reflex and sensation. Records of primary care at a military clinic from 2000 to 2010 were also obtained and associated with the claims file. Clinicians noted the Veteran's symptoms substantially as reported in other records but did not comment on the impact on her employment and explicitly declined to perform a disability assessment. In June 2013, the Director again reviewed the claim and denied an extra-schedular rating because the Veteran was able to move the left arm and muscle strength was normal with no atrophy as noted in the 2012 private outpatient records. III. Analysis Ratings shall be based as far as practicable, upon the average impairments of earning capacity. The VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extra-schedular evaluation in the first instance. See also VAOPGCPREC 6-96 (Aug. 16, 1996). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must first determine whether the rating schedule is adequate or 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 extra-schedular rating. Here, in the April 2008 decision, the Board performed the Thun analysis and concluded that the current rating schedule was not adequate, that there was evidence of marked interference with employment, and that referral to the Director was warranted. The Director, Compensation and Pension Service has considered and denied an extra-schedular rating in June 2009, January 2012, and June 2013. The Board concludes that there is credible evidence both for and against an extra-schedular rating, and resolving all doubt in favor of the Veteran, the award of an extra-schedular rating for weakness of the left upper extremity is warranted for the entire period of time covered by this appeal. As a preliminary matter, the Board finds that the Veteran is both competent and credible in her reports of observable symptoms and their impact on her occupation as a secretary, receptionist, and file clerk. She consistently reported severe and constant pain and a need to immobilize the left arm to reduce pain that were never challenged by clinicians or examiners as exaggerated or imaginary. In fact, she has been prescribed medication and injections for pain control for most of the period of the appeal. Several, but not all, examiners noted significant limitation of shoulder and elbow motion and hand numbness. None of the examiners challenged the Veteran's voluntary immobilization of the arm because of pain, although the credibility of the reports is somewhat diminished by the absence of any muscle atrophy that clinicians found inconsistent with a long period of immobilization. Nevertheless, the record is clear that the Veteran continued to seek employment that would accommodate limited or no use of the arm. It is not reasonable that the Veteran who desired to continue to work would immobilize her arm and accept a lower paying jobs unless it were necessary to reduce her symptoms. The Board assigns significant probative weight to the reports and conclusions of most medical examiners that the Veteran's left upper extremity disability represents an unusual picture and imposes a marked impact on employment. As the Veteran remains employed albeit in a less demanding, lower paid position, an extra-schedular total rating based on individual unemployability is not warranted. Nevertheless, the Board concludes that an extra-schedular rating for the left upper extremity disability is warranted for the entire period of time covered by this appeal for the following reasons. The current schedular rating contemplates only a portion of the Veteran's left upper extremity disability. Neuritis or partial paralysis of the long thoracic nerve under Diagnostic Code 8519 or (as suggested by the Director) 8619 contemplates only the inability to raise the arm above the shoulder level. The Veteran's left upper extremity weakness has been diagnosed as brachial plexopathy caused by radiation therapy that affects more than one upper extremity nerve system as indicated by the definition and by lay and medical evidence of pain and functional impairment of the elbow and to a lesser extent the wrist and hand. At no time did any clinician or examiner indicate that a long thoracic nerve deficit was the sole source of the pain, weakness, numbness, loss of strength, reflexes, and limitation of motion of the entire upper left extremity. Furthermore, in 2011, a VA examiner diagnosed adhesive capsulitis (frozen shoulder) caused by arm immobility as a result of the underlying nerve damage. Therefore, the single diagnostic code rating is not adequate to encompass all the Veteran's symptoms and dysfunction. Other diagnostic codes in 38 C.F.R. § 4.124a for radicular groups contain symptoms affecting multiple joint functions and suggest that higher ratings may be warranted. There is substantial lay and medical evidence that the disability does present an exceptional picture because there is convincing evidence of a marked impact on employment. Simply put, the Veteran is able to work at typing and filing with only one hand and arm. The Board acknowledges that the Veteran has not lost all use of the arm and hand so that rating under the amputation criteria is not appropriate. The Board also acknowledges that one VA examiner in 2007 found only a mild level of dysfunction. The examiner in 2003 noted "no true weakness" but also noted significant limitations of motion of the shoulder and elbow, did not challenge the Veteran's report of severe pain, and did not challenge her report of an inability to type. The reported tremors were not always observed and expected muscle atrophy was never observed. On the other hand, the Veteran and many VA, NIH, and private examiners from 1997 to 2013 credibly described marked occupational impairments. The Veteran has reported throughout the record that her left arm disability significantly interfered with her ability to work. The July 1997 VA examiner found, "I would describe this as a severe disability and [sic] unable to do any work with that side." She told the October 2003 examiner, for example, that she is only able to answer phones and cannot do any other office activities because of her left arm. She reported that she is unable to type with the left arm or button shirts. She reported to the July 1997 examiner that she cannot really use the arm, other than to "sort of push things or sort of cradle things." A February 1998 oncologist stated that the Veteran's weakness has "left her unable to perform her normal secretarial duties and has caused her significant pain as she made a valiant effort to continue to work with her disability," adding that she will have to find work that "does not require use of her left arm." He described the arm as "non-functional." In October 2003, a VA neurological examiner also noted that the Veteran worked as a receptionist and was limited to only answering phones due to her disability. A May 2007 VA examiner also noted that she was able to work as a telephone switchboard operator with the symptoms of her disability. The VA physician in 2011 noted significant limitations of motion of the shoulder and elbow and found that there was employment impairment because of very limited shoulder mobility. The VA physician in April 2012 noted that the Veteran was clumsy with the left hand and stated that if she attempts to hold a piece of paper, she experiences shaking. The private physician in April 2012 noted that the Veteran had to appear at her job hours early to keep up with her tasks. Finally, the VA physician in 2012 clearly noted that the disability presented an unusual or exceptional picture. The Board concludes that this Veteran's disability presents an unusual or exceptional limitation to working with one arm and hand in sedentary administrative occupations and constitutes a marked interference with employment warranting a rating in excess of 20 percent on an extra-schedular basis. ORDER An extra-schedular rating in excess of 20 percent for weakness of the left upper extremity secondary to surgery and radiation therapy is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs