Citation Nr: 1415820 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 10-47 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an increased rating for right upper extremity weakness, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note that 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). The Veteran had active service from August 1958 to August 1961. This matter came before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In December 2013, the Board denied service connection for left ear hearing loss and an increased rating for right shoulder degenerative changes. The instant issue was remanded for additional development, and has been returned to the Board for appellate consideration. The Board notes that in a statement dated in October 2013, the Veteran raised the issue of entitlement to service connection for residuals of a concussion. This matter, which has not yet been adjudicated, is again referred to the agency of original jurisdiction (AOJ) for the appropriate consideration. FINDING OF FACT Right upper extremity weakness is manifested by subjective complaints of numbness, tingling, and weakness; the most probative objective evidence does not support a finding of paralysis, neuritis, or neuralgia of the right upper extremity. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for right upper extremity weakness have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.7, 4.124a, Diagnostic Code 8511 (2013). 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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); 38 C.F.R. § 3.159(b) (2013); 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in December 2007 discussed the evidence necessary to support claims for increased ratings. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. The Veteran was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent notices advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that VA, Indian Health Service, and private medical records have been associated with the claims file. The Veteran has not identified and authorized the release of any additional non-VA records pertinent to this claim. In June 2011 he indicated that there was no other information or evidence he could submit in support of his claim. The Veteran was afforded VA examinations which collectively provide sufficient information concerning the claimed disability for the Board to render an informed determination. Neither the appellant nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. 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. The Veteran's right upper extremity weakness is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8511. The criteria for evaluating the severity or impairment of the middle radicular group nerves is set forth under 38 C.F.R. § 4.124a, Diagnostic Codes 8511, 8611, and 8711. Under DC 8511, a 20 percent rating applies where there is mild incomplete paralysis in the major extremity. A 40 percent rating is warranted where there is moderate incomplete paralysis in the major extremity. A 50 percent evaluation applies where there is severe incomplete paralysis of the major extremity. Diagnostic Codes 8611 and 8711 address the criteria for evaluating neuritis and neuralgia of the middle radicular group nerves, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DC's 8515, 8611, and 8711 (2013). The Board notes that the Veteran's right upper extremity is his dominant (major) extremity. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve 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, DC's 8510 through 8540 (2013). Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2013). Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with 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. § 4.124 (2013). In September 2007, the Veteran stated that his right shoulder and upper extremity disabilities had worsened. He indicated that he experienced pain and swelling. The report of an October 2007 VA EMG consultation notes the Veteran's complaints of numbness and tingling on the back of his right hand and in the upper right shoulder region. He also complained of a burning sensation over the deltoid area. He denied any weakness, cramping, increased symptoms at night, or increased symptoms with driving. Physical examination revealed no atrophy in the hands. The sensory examination was noted to be difficult due to the Veteran's complaints of numbness of the entire arm in a nonanatomic distribution from the shoulder all of the way down into the fingers. Motor strength was normal in the arms and reflexes were 1+ and symmetric. Following electordiagnostic study, the provider indicated that that right median and ulnar motor and sensory nerve conduction studies were within normal limits, as was the EMG around the right shoulder. The provider noted that there was no sign of peripheral nerve or root damage to account for the Veteran's complaint. The diagnosis was pain in limb, normal electrodiagnostic testing. On VA orthopedic examination in January 2008, the Veteran's history was reviewed. The examiner noted that the Veteran had neurological weakness of the right upper extremity associated with degenerative joint disease of the right shoulder. The Veteran reported that his symptoms had worsened over the previous five years. He endorsed pain and weakness, but denied a history of deformity, giving way, instability, stiffness, and episodes of dislocation. The examiner noted that an MRI report indicated supraspinatus tendinopathy and mild acromioclavicular arthropathy. He noted that the impact on the Veteran's occupational functioning resulted from decreased manual dexterity, problems with lifting and carrying, difficulty reaching, and decreased strength. On VA peripheral nerves examination in January 2008, the examiner noted that the claims file was not available for review. The Veteran endorsed weakness, numbness, paresthesias, and pain from his right shoulder down to the distal right upper extremity. He noted that he had decreased grip strength. Physical examination revealed 4/5 strength in the right upper extremity; the examiner noted that the radial and ulnar nerves were affected. Sensation was decreased to pain and touch; position sense was normal. There was no muscle atrophy, abnormal tone or bulk, or abnormal movements. The diagnosis was right upper extremity neuropathy. The examiner indicated that there was nerve dysfunction, paralysis, and neuralgia. The effect of the disability on daily activities was moderate with respect to chores, shopping, exercise, sports and recreation. No impairment was noted with respect to traveling, feeding, bathing, dressing, toileting, or grooming. On orthopedic consultation in July 2009, strength was fair. Impingement signs were positive. The Veteran's hand and fingers were mobile and sensate with intact capillary refill. On orthopedic consultation in September 2009, the Veteran reported that his shoulder no longer bothered him following a subacromail injection in July 2009. He indicated that he had tingling under the skin in his arm and hand. The assessment included persistent right upper extremity neuropathy. On orthopedic consultation in April 2010, the Veteran described decreased sensation in his right arm and a burning sensation in the forearm. Physical examination revealed decreased sensation to pinprick and touch in a nondermatomal distribution in the right hand. On VA neurological consultation in June 2010, the provider noted the Veteran's long history of right upper extremity weakness from a shoulder injury. In November 2010, the Veteran stated that he was unable to use his right arm, and that pain radiated from his shoulder into his right arm and hand. On VA examination in March 2012, the diagnosis was degenerative joint disease. The examiner noted that the Veteran was right hand dominant. She noted that the diagnosis pertaining to the Veteran's right upper extremity had been characterized as "neurologic weakness right upper extremity." She indicated that the Veteran's symptoms included moderate constant pain in the right upper extremity, but that there was no intermittent pain, paresthesias and/or dyesthesias, and no numbness. Muscle strength testing was 5/5 on abduction and forward flexion. There was no muscle atrophy. Reflexes were 1+. Testing for light tough was normal in the shoulder area, inner/outer forearm, and hand and fingers. There was no evidence of trophic changes. The examiner concluded that the condition did not impact the Veteran's ability to work. In January 2014, the Veteran was again examined by the March 2012 examiner. She noted that the examination was unchanged from the previous one. She indicated that the interim history reported by the Veteran included his statement was that his right arm was useless because it was so weak. She pointed out that as explained in the March 2012 examination report, the nerve conduction studies of the Veteran's right arm were normal, and such was the gold standard for neuropathy. She pointed out that the 2007 nerve conduction study was performed many years following the injury, which was well beyond adequate for nerve damage from same to be demonstrable. She further pointed out that examination by the neurologist revealed normal strength. She concluded that there was no current support for any neurologic weakness, paralysis, neuritis, or neuralgia. Having carefully reviewed the evidence pertaining to this claim, the Board concludes that an evaluation in excess of 20 percent is not warranted for the service-connected right upper extremity weakness. In this regard, the Board notes that the current evaluation contemplates mild incomplete paralysis in the major extremity. A higher evaluation requires evidence demonstrating moderate incomplete paralysis. Such is not shown by the record. Rather, the evidence pertaining to the period under consideration indicates that nerve conduction studies are normal, and the most probative evidence indicates that there is no objective evidence supporting paralysis, neuritis, or neuralgia. The Board acknowledges that a January 2008 VA examiner indicated an impression of nerve dysfunction, paralysis, and neuralgia; however, that examiner also specified that the claims file was not available for review. This examiner did not review the October 2007 report indicating normal nerve conduction studies. Moreover, while the September 2009 orthopedic consultation record indicates right upper extremity neuropathy, it is not clear whether the October 2007 nerve conduction study report was reviewed by the orthopedic provider. On the other hand, the March 2012 examiner reviewed the record on two occasions, including the October 2007 nerve conduction study report, and ultimately determined that there was no evidence to support neurologic weakness, paralysis, neuritis, or neuralgia. There is no indication that the VA examiner was not fully aware of the Veteran's past history or that she misstated any relevant fact. The Board thus finds the VA physician's January 2014 opinion to be of greater probative value than the conclusions of the January 2008 neurological examiner and the September 2009 orthopedic consultant. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, the Board concludes that the evidence does not demonstrate disability greater than that contemplated by the current evaluation for mild incomplete paralysis of the middle radicular group. Objectively, the Veteran has demonstrated, at worst, 4/5 strength on physical examination, 1+ and symmetric DTRs, and decreased sensation to pinprick and touch. However, objective neurological testing has been normal and the most recent examiner stated, after a review of the history, that there was no current support for any neurologic weakness, paralysis, neuritis, or neuralgia. The Board acknowledges that the Veteran is competent to report that his disability is worse. The Board, however, concludes that the more probative evidence consists of that prepared by a neutral skilled medical provider, who found that neurological findings on NCV testing, which the examiner noted was the gold standard for neuropathy, were normal. Therefore, the Board concludes that the evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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 initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected right upper extremity weakness. The evidence demonstrates that the Veteran's symptomatology, including the reported burning sensation, numbness, and tingling in the arm and hand, is specifically contemplated under the appropriate ratings criteria for the currently assigned 20 percent evaluation. Thus, the Board determines that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to an evaluation in excess of 20 percent for right upper extremity weakness is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs