Citation Nr: 1602570 Decision Date: 01/27/16 Archive Date: 02/05/16 DOCKET NO. 13-01 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether the reduction of the rating for a service-connected injury to the left digital nerve and left thumb, with hyperesthesia and degenerative joint disease (left hand disability), from 40 percent to 10 percent disabling effective May 3, 2011 was proper. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran requested a hearing before the Board by live videoconference that was scheduled for October 2015. He did not appear at the hearing. Although there is a question as to whether he received notice of the hearing, the Board grants the benefit sought on appeal in full by restoring his left hand disability rating. Thus, the Board finds that he will not be prejudiced by proceeding to a decision on the merits. The issue of entitlement to service connection for stenosing tenosynovitis, claimed as "trigger fingers," bilaterally, has been raised by the Veteran in an August 10, 2010 written statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The Veteran's service-connected left hand disability did not show actual improvement under the normal circumstances of life during the relevant period. CONCLUSION OF LAW The reduction of the 40 percent rating for a service-connected left hand disability to 10 percent was improper. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105(e) & (i), 3.321, 3.344, 4.1-4.7, 4.124a Diagnostic Codes 8516, 8616 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the reduction of the Veteran's rating for a service-connected left hand disability from 40 percent to 10 percent disabling was improper, and thus restores the 40 percent rating effective May 3, 2011. Notwithstanding the procedural steps that must be taken, a rating reduction is not proper unless the veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran's disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Here, the evidence of record shows that the Veteran's left hand symptomatology remained essentially unchanged during the appeal period and thus, his 40 percent rating should be restored. The Veteran's left hand disability is rated by analogy under DC 5309-8616 concerning disability of the ulnar nerve. 38 C.F.R. § 4.124a, DCs 8516, 8616 and 8716 (2015). The Veteran's left hand is his dominant hand. See October 2009, May 2011 and April 2013 VA Examination Reports. Under the diagnostic codes applicable to impairment of the ulnar nerve, disability ratings of 10, 30, and 40 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the ulnar nerve affecting the major extremity. 38 C.F.R. § 4.124a, DC 8516. The Board notes that in rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of loss 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 Board further notes that the terms "mild," "moderate" and "severe" under DC 8516 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In this case, although the May 2011 VA examination (upon which the rating reduction was based) appears to show improvement, the other evidence of record shows that the Veteran's symptoms did not actually improve under the ordinary conditions of life and work. Less than two years prior to the Veteran's rating reduction, his left hand disability rating was increased to 40 percent based on the findings of an October 2009 VA examination. The October 2009 VA examiner noted that the Veteran had developed a hyperesthetic pain syndrome involving his left hand, with symptoms including: pain (worse in the cold), excessive sweating of the hand, atrophy of the thenar area, tenderness to touch all over (but most tender on the palmar surface of the thenar prominence), sharp shooting pain when pressure is placed on the thenar area and an inability to use thumb in opposable grip due to pain in the thumb. Although the examiner found fair range of motion in the digits of the left hand, it was noted that the Veteran could not stand for the thumb to be in contact with any object due to pain. The examiner also noted that the skin of his left hand was a slightly paler color and cooler to the touch. The October 2009 VA examiner noted the Veteran's reports of seasonal flare-ups, especially in cold weather, during which the Veteran experienced increased pain and limitation of movement involving of the fingers and thumb. On physical examination, the examiner noted that the Veteran had a gap of less than one inch between the left thumb pad and the fingers. His index finger range of motion was normal, but the examiner noted a gap between his left index finger and proximal transverse crease of hand on maximal flexion to less than one inch. His left long finger range of motion was normal, except for a gap of less than one inch between the long finger and the proximal transverse crease of the hand on maximal flexion of the finger. Range of motion in the Veteran's left hand ring finger and little finger was normal. The examiner noted that all motion in the left hand/digits was painful. The October 2009 VA examiner also noted decreased strength in the left hand for pushing, pulling and twisting due to pain. Decreased dexterity was also noted. The examiner also noted that the Veteran had a pain response in his left hand that was disproportionate to light touch stimulus in that he exhibited a very strong withdrawal response and hyperhidrosis (excessive sweating) of the hand with flushing. The examiner found that the Veteran had complex regional pain syndrome associated with his service-connected left hand disability, resulting in an inability to flex the left thumb and hyperesthesia of the left thumb. Based on these findings, the Veteran was awarded a 40 percent disability rating under DC 8516 for severe incomplete paralysis. See January 2010 Rating Decision. The Veteran sought service connection for stenosing tenosynovitis ("trigger fingers") and arthritis in August 2010. In connection with his claims, he was provided a VA examination in May 2011. The May 2011 examiner's findings were significantly different than those of the October 2009 VA examiner. The May 2011 examiner noted no overall decrease in hand strength, no decrease in hand dexterity, no flare ups, no decreased range of motion or gaps involving any of the fingers or thumb, and no evidence of painful motion. The examiner also noted normal muscle tone and no evidence of atrophy of the left hand. Although the May 2011 VA examiner noted the Veteran's reports of paresthesia/burning sensation in the left hand, the examiner reported that the sensory examination revealed normal response to vibration, pain/pinprick, position sense and light touch. The examiner noted that an EMG test was ordered, but cancelled by the Veteran. The examiner stated that the issue of the Veteran's "claim[ed] increased disability evaluation for injury, left digital nerve, left thumb" could not be resolved without resort to mere speculation. The Board notes the Veteran's reported reason for refusing the EMG test was because the test has been performed less than two years prior (in October 2009) and was very painful. The Veteran sought a neurology consultation for his left hand nerve damage at a VA medical center in May 2012. The neurology consultation record shows that his service-connected injury occurred to a vulnerable area of the hand that has exposed neurovascular structures. On physical examination, the treating provider noted that the Veteran could touch each fingertip to his thumb, but experienced great pain in doing so. The Veteran also exhibited a strong withdrawal response when the provider touched his left hand, and he could not palpate any structures because of pain. The provider noted that the Veteran had a focal nerve injury by direct insult to the palm of the left hand, affecting the distal ulnar nerve and possibly the median nerve as well, and limiting full abduction of the fingers of the left hand. The Veteran was examined by VA again in April 2013. The results of this examination were similar to those of the October 2009 VA examination. The April 2013 VA examiner noted painful motion of the Veteran's thumb and a gap of less than one inch between his left index finger and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips. No other limitation of motion or painful motion was noted. Nevertheless, the April 2013 VA examiner found tenderness or pain to palpation of the left hand, significantly decreased muscle strength in left hand grip ( a rating of 1/5, described as "palpable or visible muscle contraction, but no joint movement") and muscle atrophy of the left hand. The examiner further noted that the Veteran exhibited pain behavior with all use of his left hand and reported severe and constant pain and paresthesia/dysesthesia. The April 2013 VA examiner also noted hyperesthesia of the left hand during the sensory examination. As the May 2012 VA neurology consultation and April 2013 VA examination shows symptoms and a level of impairment consistent with that noted during the October 2009 VA examination, the Board finds that the evidence does not show an actual or sustained improvement in the Veteran's left hand disability under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 349. The October 2009 and April 2013 VA examination reports, as well as the May 2012 VA neurology consultation record, showed symptoms of reduced range of motion of the fingers and severe pain and paresthesia/dysesthesia of the left hand resulting in hyperesthesia. The October 2009 and April 2013 VA examiners also noted left hand muscle atrophy and significantly reduced grip strength. Because an actual improvement in the Veteran's left hand disability has not been shown, the reduction in disability rating was not warranted, and the Veteran's 40 percent rating under DC 8616 for his service-connected left hand disability is restored. ORDER Subject to the law and regulations governing payment of monetary benefits, the 40 percent rating for service-connected injury to the left digital nerve and left thumb, with hyperesthesia and degenerative joint disease, is restored effective May 3, 2011, and the appeal is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs