Citation Nr: 1800927 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 08-33 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to rating in excess of 10 percent for left ulnar damage with painful elbow extension, status post fracture of left medial epicondyle, for the period prior to July 19, 2007, and in excess of 20 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to September 1978. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2011 the RO issued a decision increasing the rating for the Veteran's ulnar nerve damage to 20%, effective July 19, 2007, the date of the Veteran's filing for an increased rating. As that decision constituted a partial grant of benefits sought on appeal, the issue of higher evaluations remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The March 2011 rating decision also granted a total temporary rating from September 2008 to November 2008. The RO issued a May 2012 rating decision, combining the Veteran's disability rating for ulnar nerve damage with his previously separately rated left medial epicondyle fracture on the grounds that there was no distinct functional impairment. The rating for left ulnar nerve damage was continued at 20%. The Veteran did not appeal the elimination of a separate rating for his left medial epicondyle fracture, and therefore it is not before the Board at this time. In a July 2015 decision, the Board referred the questions of service connection for carpal tunnel and Parkinson's disease to the RO and remanded the question of an increased rating for a left elbow disability as inextricably intertwined with those issues. The Board also remanded the issue of entitlement to TDIU for further evidentiary development. The RO denied entitlement to service connection carpal tunnel in a May 2016 rating decision and denied entitlement to service connection for Parkinson's disease in a February 2017 rating decision. The Veteran has not perfected an appeal on those issues, so they are not before the Board at this time. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. Based on a consideration of the whole evidence of record, it is factually ascertainable that the Veteran's left ulnar disability had increased in severity on November 14, 2006. 3. During the entire appeal period, the Veteran's left ulnar nerve disability has been characterized by moderate intermittent pain, moderate paresthesias and/or dysthesias, and numbness in the left upper extremity. CONCLUSION OF LAW 1. The criteria for a 20 percent disability rating for left ulnar damage with painful elbow extension, status post fracture or left medial epicondyle, effective November 14, 2006, are met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.2, 4.3, 4.14, 4.124a, Diagnostic Code 8516 (2017). 2. The criteria for a rating in excess of 20 percent for left ulnar damage with painful elbow extension, status post fracture or left medial epicondyle, but no higher, is not met, excluding the period when a temporary total rating was in effect. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.14, 4.124a, Diagnostic Code 8516 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's left ulnar nerve damage is rated under Diagnostic Code (DC) 8516. As the evidence shows that the Veteran is right handed, his left elbow disability is rated under the schedule for minor nerve disabilities. 38 C.F.R. § 4.69. The Veteran is currently assigned a 20 percent disability rating under this DC, effective July 19, 2007, except that a temporary total rating for convalescence from surgery was assigned for the period from September 2008 to November 2008. Under the DC, a 10 percent rating is assigned for mild incomplete paralysis of the ulnar nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the ulnar nerve. A 30 percent rating is assigned for severe incomplete paralysis. A 50 percent rating, the highest rating available under the DC, is assigned for complete paralysis with 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 cannot spread the fingers (or reverse), cannot adduct the thumb and flexion of wrist, weakened. The Veteran's VA treatment records document ulnar pain, including radiating pain, and persistent numbness in the fingers. Portland VAMC records from November 2006 show pain and numbness in all digits of the left hand up to the elbow and electromyography (EMG) results of slowing across the elbow of 25 m/s, which the records note indicates moderate severity left ulnar neuropathy. Another EMG conducted in May 2007 had the same results. VA treatment records also document surgery in September 2008 for an open cubital tunnel release of the left ulnar nerve. An electrodiagnostic study in December 2012 showed continuing left ulnar entrapment at the elbow. The VA provider noted that the EMG prior to surgery showed 25 m/s slowing across the elbow, that immediate post-operative results showed slowing of 10 m/s, and the current EMG showed 18 m/s slowing. An October 2010 VA examination found left ulnar neuropathy of moderate severity. The examiner found that neuralgia was present and that the Veteran had problems with lifting and carrying, weakness, fatigue and pain. An August 2014 VA examination noted that the Veteran had shooting pain with compression or touching of the left elbow over the medial side, and shooting pain in the ulnar distribution and to the lateral small fingers. The examiner found no loss of grip strength or hand function, normal muscle strength and no atrophy. The examiner found symptoms of mild intermittent pain (usually dull), mild paresthesias and mild numbness. The examiner concluded that the Veteran had moderate incomplete paralysis of the ulnar nerve. He also noted that the ulnar nerve was painful to palpation and had full strength but decreased sensation, and therefore he would expect additional moderate loss of strength, coordination and fatigue due to repetitive movement, flares, and pain, but that the nerve wouldn't be expected to cause loss of range of motion. Another VA examination was conducted in June 2017. The examiner found incomplete ulnar paralysis and recorded symptoms of moderate intermittent pain, moderate paresthesias and/or dysthesias, and numbness in the left upper extremity. The examiner found that the Veteran did not have constant pain. Muscle strength testing indicated 4/5 strength in both the left grip and left pinch. The examiner observed mild atrophy of the left hypothenar eminence by inspection and palpation. Sensory testing indicated decreased sensation in the left hand and fingers. The Veteran also underwent VA elbow/forearm examinations in October 2010 and August 2014 that tested the range of motion in his elbow. In both cases, flexion was limited to 145 degrees and extension was between 20 and 25 degrees. The August 2014 examiner noted painful motion beginning at 25 degrees of extension. The examiner also expected an additional loss of 5 degrees of extension due to pain and mild overall loss of strength and coordination and fatigue due to repetitive movement and flares. The Veteran filed for an increased rating in July 2007, contending that his left elbow disability warranted a rating above the 10 percent then assigned, and the RO granted an increase to a 20 percent rating, effective the date of filing. For the reasons that follow, the Board concludes that a 20 percent disability rating, but no higher, is warranted beginning November 14, 2006, excluding the period when a temporary total rating has been assigned. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to the general rule apples in claims for non-initial increased ratings, where an increase may be granted as of the earliest date when "it is factually ascertainable based on all evidence of record that an increase in disability occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim." 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claim file. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). The Board will therefore consider whether it is factually ascertainable that an increase in the Veteran's disability occurred within the year prior to filing his claim for an increased rating. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight with respect to the severity of the Veteran's left elbow disability at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). As noted above, to warrant a rating of 20 percent for ulnar nerve damage on the non-dominant arm, the evidence should show moderate incomplete paralysis. Following complaints of trouble with neuropathy at a VA outpatient clinic on November 2, 2006, the Veteran had a consultation on Portland VAMC VA November 14, 2006, during which an EMG was conducted to assess his neuropathy. The EMG results from that date show 25 m/s slowing across the elbow and findings of moderate severity left ulnar neuropathy across the elbow. As discussed above, another EMG was conducted at the VAMC in May 2007 and had the same results and findings, which is also consistent with the later findings of the VA examiners that the Veteran has moderate incomplete paralysis of the ulnar nerve. The Board therefore finds that the evidence supports a factual finding that on November 14, 2006, the Veteran's left ulnar damage had increased to the level of moderate severity, warranting a rating of 20 percent, but no higher, effective that date. Having found that a 20 percent disability rating is warranted effective November 14, 2006, the Board must now determine if a rating in excess of 20 percent is warranted at any time during the appeal period, excluding the period when a temporary total rating has been assigned. In this regard and upon consideration of the evidence of record, the Board finds that the rating criteria for an evaluation in excess of 20 percent have not been met or approximated at any point during the appeal period. To warrant a disability rating in excess of 20 percent for ulnar nerve damage on the non-dominant side, the evidence would have to show severe incomplete paralysis. The VA examiners have consistently found that the Veteran's left ulnar neuropathy is moderate in severity. The VA examination reports show that the Veteran's intermittent pain, paresthesias, dysthesias and numbness have consistently been assessed as mild or moderate, not severe, and while the June 2017 VA examination found slight decrease in muscle strength, atrophy was mild. While December 2012 EMG results note worsening since the September 2008 surgery, slowing of 18 m/s across the elbow was actually an improvement over the moderate results (slowing of 25 m/s) from 2006 and 2007. The Board therefore finds that the competent evidence of record supports a finding of left ulnar neuropathy of moderate severity, and thus an entitlement to a 30 percent rating is not warranted. Additional factors that could provide a basis for an increased rating have also been considered; however, it is not shown that the Veteran has any functional loss beyond that being currently compensated. While the August 2014 examiner considered additional functional loss due to pain, weakness, fatigability, or incoordination, it was included in the assessment of the Veteran's condition as moderate, given that the Veteran's symptoms were otherwise assessed as mild. The Veteran has also considered the Veteran's lay statements. During the period of his appeal, the Veteran has consistently stated that he is entitled to an increased rating and has submitted statements contending that he has persistent numbness in his left hand and pain in his fingertips. The Veteran is competent to report these symptoms and the Board accords his statements significant probative weight. However, these symptoms were noted in the VA examinations, are encompassed in the rating for moderate ulnar nerve damage already assigned, and do not constitute an additional functional limitation that would warrant a rating above 20 percent. The Board has considered whether an alternate rating should be assigned for limitation of left elbow flexion or extension. Under DC 5206 for limitation of flexion of the elbow, a noncompensable rating is assigned for flexion limited to 110 degrees. As the Veteran's VA examination results indicate that he is able to flex beyond that to 145 degrees, with an estimated additional 5 degree limitation due to pain, weakness, incoordination or fatigue, rating under this DC provides no benefit. Under DC 5207 for limited elbow extension, a 10 percent rating is assigned for extension limited to 45 degrees. As the Veteran's VA examination results indicate that he is able to extend beyond that to 20 or 25 degrees, with an estimated additional 5 degree limitation due to pain, weakness, incoordination or fatigue, rating under this DC provides no benefit to the Veteran. All potentially applicable DCs have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 20 percent. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, an increased rating in excess of 20 percent for the Veteran's service-connected left ulnar damage with painful elbow extension is denied, excluding the period when a temporary total rating was in effect. ORDER A rating of 20 percent, but no higher, for left ulnar damage with painful elbow extension, status post fracture of left medial epicondyle, effective November 14, 2006, subject to law and regulations governing payment of monetary awards. Entitlement to rating in excess of 20 percent for left ulnar damage with painful elbow extension, status post fracture of left medial epicondyle, is denied, excluding the period when a temporary total rating was in effect. REMAND The Veteran contends that he is unemployable due to his service connected disabilities and therefore entitled to TDIU. Pursuant to the July 2015 Board remand, a VA medical opinion regarding the Veteran's entitlement to TDIU was obtained in June 2017. The examiner found that while the Veteran's chronic foot and ankle pain has the effect of stopping all physical labor, the Veteran was not limited by his service-connected disabilities in sedentary employment. The opinion does not indicate which medical records or other evidence are the basis of these conclusions or otherwise explain its rationale. The opinion also states that the Veteran's service-connected disabilities "all have some decrease of function daily," but does not specify the nature or degree of those decreases in function and similarly concludes that the Veteran "has full ADLs" but does not specify the basis of this conclusion. In addition, the Board's review of the record indicates that VA foot and ankle examination conducted in February 2011 found that prolonged sitting for greater than 30 minutes aggravated the Veteran's left foot and ankle disability. It is not clear from the July 2017 medical opinion whether this finding regarding the Veteran's ability to sit for greater than thirty minutes was considered in reaching the conclusion that the Veteran's service-connected disabilities do not limit him in sedentary employment. An examination that presents conclusions without supporting evidence, as this one, is inadequate. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board finds that another examination regarding the Veteran's entitlement to TDIU is necessary in this case Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion regarding the functional and occupational impact of the Veteran's service-connected disabilities on his ability to perform sedentary and manual work. The examiner is requested to provide a full description of the effects of service-connected disabilities upon the Veteran's ordinary activity, including the degree of any impairment of the Veteran's ability to sit, stand, and walk, as well as any impact on the Veteran's ability to do manual work. A complete rationale for all conclusions should be provided. Attention is requested to the findings of the February 2011 VA examiner regarding the impact of the Veteran's service-connected disabilities upon his ability to sit. If the opinion differs from the February 2011 examiner in its assessment of the Veteran's ability to sit for prolonged periods, please explain why. 2. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs