Citation Nr: 1802102 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-21 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected cubital and carpal tunnel syndrome of the right arm. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1975 to October 1978. This matter comes before the Board of Veterans' Appeals on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In July 2017, the Veteran testified via videoconference before the undersigned Veterans Law Judge at a Board hearing. A copy of that transcript is of record. As a preliminary matter, the Board recognizes that throughout the record, the Veteran has attested to the effects his disability has had on his ability to work. These effects are discussed in more detail below; in sum, he states that they make his ability to perform his jobs more difficult. However, the Veteran does not contend, nor does the evidence show, that this disability renders him unemployable. In fact, the Board notes that the Veteran continues to work full-time, albeit, with some difficulty. As neither the Veteran nor the record explicitly raised the issue of total employability, the declines to take jurisdiction over a total disability claim. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue of entitlement to service connection for residual scar attributable to surgery for service-connected cubital and carpal tunnel syndrome has been raised by the record. This issue is referred to the Agency of Original Jurisdiction for appropriate action. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran is ambidextrous; his right arm disability is considered a major extremity. 2. The Veteran's cubital (ulnar nerve) and carpal tunnel (median nerve) syndrome of the right arm is manifested by pain, stiffness, and numbness more nearly approximating symptomatology contemplated under moderate incomplete paralysis of the lower radicular group; severe incomplete paralysis is not shown. CONCLUSION OF LAW 1. The criteria for the assignment of an evaluation of 40 percent, but no higher, have been met for cubital and carpal tunnel syndrome of the right arm. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a Diagnostic Code 8512 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) which includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, if the disability rating exceeds the maximum evaluation for limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston, 10 Vet. App. at 85. In rating nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture 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. Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. However, VA's Adjudication Manual does provide guidance in evaluating the severity of nerve paralysis. According to the Manual, 'mild' incomplete paralysis is demonstrated by subjective symptoms or diminished sensation. "Moderate" incomplete paralysis is manifested by the absence of sensation confirmed by objective findings. "Severe" incomplete paralysis is manifested when more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes. M-21, III.iv.4.G.4.b. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, 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 equal to severe, incomplete paralysis. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, 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 maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124. The Veteran's nerve disability of the right arm is rated 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8515. Significantly, Diagnostic Code 8515 provides different criteria for the major (dominant) and minor (non-dominant) extremities. Pursuant to VA regulation, only one extremity is considered dominant, which will be determined by the evidence of record or by VA testing. As such, in evaluating an upper extremity disability, it is necessary to distinguish between the predominant, or major, upper extremity and the minor upper extremity, as such distinction may affect the criteria for a particular level of impairment. 38 C.F.R. § 4.69. In the case at hand, examination reports of record note that the Veteran is left-handed. However, additional evidence of record, to include lay observation and testimony, suggest that the Veteran may be at the very least, ambidextrous. Specifically, the Veteran testified that he cooked and wrote with his left hand. However, he performed all other activities, such as driving and gesturing, with his right hand. Throughout the hearing, the presiding VLJ also noticed that that Veteran's right hand appeared more dominant than the left hand. See Board Hearing Transcript, pp. 14-15, 20. Given the lay evidence and observations at the Board hearing, the Board finds that the Veteran's right arm is at least equally as dominant as his left arm. Thus, for rating purposes, the Veteran's right hand will be considered the major extremity. The Board further observes that the Veteran is service-connected for ulnar and medical nerve injuries. With respect to rating peripheral nerve injuries of the upper extremities, separate ratings for each nerve group are not assignable. Rather, the Rating Schedule contemplates evaluating under the most appropriate and beneficial higher rating group. See 38 C.F.R. § 4.124a, NOTE following Diagnostic Code 8719. Here, the Board finds it most appropriate to assign a rating for the lower radicular group under Diagnostic Code 8512. Under Diagnostic Code 8512, a 70 percent rating is warranted for complete paralysis of the lower radicular group of the major extremity, as evidenced by all intrinsic muscles of hand, and some or all of flexors of wrist and fingers paralyzed (substantial loss of use of hand). A 50 percent rating is warranted for severe incomplete paralysis of the lower radicular group, while a 40 percent rating is warranted for moderate incomplete paralysis of the lower radicular group. The Veteran is currently assigned a 20 percent rating for his right arm median nerve disability, based on the ratings assigned for a minor extremity. As previously noted, the ratings relevant to the major extremity are more appropriate, given the nature of the Veteran's use of his hands. Thus, the Board finds that a rating for 40 percent is warranted for the Veteran's service-connected disability. The ensuing analysis will focus on whether the Veteran's symptomatology more nearly approximates that which is contemplated by at least severe incomplete paralysis of the median nerves. For the reasons that follow, the Board finds that a rating in excess of 40 percent is not warranted. At a November 2010 neurological consultation, the clinician found that the right median nerve had low sensory amplitude along with tardiness of the sensory distal latency. The right ulnar nerve endorsed very low sensory amplitude and significant slow motor conduction velocity across the elbow. At the December 2010 VA examination, the Veteran reported having numbness in all fingers of his right hand, which increased while he performed his duties as a chef. Although no functional loss was present, the Veteran stated that he often had to stop and rest for a short period of time during the work day until his symptoms improved. He used an arm splint and an elbow pad to alleviate his symptoms, along with prescription medication. Upon examination, there was no evidence of paralysis, muscle wasting, or atrophy of the right forearm, wrist, or hand. There was no additional limitation caused by pain, fatigue, weakness, or lack of endurance following repetitive movement. The Veteran had normal vibration sensation, position, and sense in the fingers. The clinician diagnosed mild right carpal tunnel syndrome and right cubital tunnel syndrome. VA treatment records demonstrate the Veteran's complaints of pain, numbness and stiffness in the right upper extremity. Sensation remained intact in his fingers and he was able to flex and extend his wrist without pain. Treating physicians prescribed medications and wrist splints to help alleviate his symptoms. See VA Treatment Records dated February 21, 2014, September 26, 2014, December 29, 2014, April 7, 2015, July 24, 2015, October 30, 2015, December 30, 2015, and March 18, 2016. VA treatment records also document a recent dislocation of the right ring finger and associated symptoms. Recent records from the Veteran's private treating physician document the Veteran's complaints of pain and stiffness in the right hand and fingers. He endorsed no difficulties when performing most activities of daily living, such as preparing a meal, opening a heavy door, or carrying a heavy object over 10 pounds. However, he indicated that he had mild difficulty doing yard work, using a knife, and performing certain recreational activities, along with moderate to severe difficulty opening a tight jar. Upon examination, the Veteran demonstrated normal muscle strength in the right shoulder, elbow, and forearm, along with slightly decreased muscle strength in the wrist and digits. His sensation to touch was normal. See Private Assessment Reports dated August 5, 2017 and May 22, 2017. Also of record are the Veteran's lay statements. At the July 2017 Board Hearing, the Veteran testified that he was unable to completely close his right fist. He stated that his pain disrupted his sleep and interfered with his jobs as a chef and a pastor. See also, VA Form 9 dated September 26, 2011, Statements in Support of Claim dated September 30, 2011 and August 3, 2017, and Letter from Veteran received September 3, 2013. Upon review of the record, the Board finds that a rating in excess of 40 percent is not warranted for cubital and carpal tunnel syndrome of the right arm. Throughout the appeal period, the Veteran's right arm disability has been manifested by pain, numbness, and stiffness. The medical evidence demonstrates that while the Veteran did indeed report pain, his sensation to all touch remained intact and he had no more than mild loss of muscle strength. He often demonstrated full range of motion in the fingers and wrist with limitations causing mild difficulty doing yard work, using a knife, and performing certain recreational activities, along with moderate to severe difficulty opening a tight jar. Overall, the Board finds that the functional limitation in activities of daily living as described by the Veteran is adequately contemplated in the assigned 40 percent rating. When considering the mostly subjective sensory abnormalities in light of the normal objective sensory testing and no more than minor loss of muscle strength absent atrophy or trophic changes, the Board finds that the right arm cubital and carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the lower radicular group for the entire appeal period. In sum, a 40 percent rating, and no higher is warranted for the Veteran's cubital and carpal tunnel syndrome of the right arm. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 40 percent rating for cubital and carpal tunnel syndrome of the right arm is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs