Citation Nr: 1804438 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 08-07 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for left ulnar neuropathy, associated with left ring finger laceration residuals. REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), San Diego, California. In June 2010, the Veteran appeared at a video conference hearing before the undersigned. The hearing transcript is included in the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107 (a)(2) (West 2012). FINDING OF FACT For the entire increased rating period on appeal, from July 17, 2004, the service-connected left ulnar neuropathy more nearly approximated mild incomplete paralysis, as it affected the left ring finger through the upper extremity. CONCLUSION OF LAW For the entire rating period from July 17, 2004, the criteria for a disability rating in excess of 10 percent for the service-connected left ulnar neuropathy have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8516 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. In addition, the Board is satisfied that VA has complied with the directives of the Board's previous remand. The Board notes that the March 2017 VA examiner adequately considered the subject matter of the numerous lay statements in the file, as she specifically addressed pain, weakness and inhibited function in her examination findings and opinion. The Board therefore finds there has been substantial compliance with its June 2010 remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand (citing Stegall v. West, 11 Vet. App. 268 (1998)). Increased Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends in his Board hearing testimony that the 10 percent disability rating for left ring finger ulnar neuropathy does not reflect the continuous pain and increasing weakness he has consistently experienced since his in-service injury. The Veteran further asserts in May 2007 and June 2010 statements and a June 2009 Statement in Support of Claim that the tendons and nerves of the left ring finger were in fact severed in the in-service accident and have resulted in permanent reduced functionality. Increased Left Ring Finger Ulnar Neuropathy Disability Rating The Veteran filed his claim for increased evaluation for residuals of a laceration of the left ring finger, status post hyper extension injury on July 17, 2004. However, a November 2010 rating decision granted a separate rating evaluation for nerve and flexor tendon damage, as a residual of laceration of the left ring finger, at 10 percent effective January 20, 2006. A rating decision following in November 2012 found clear and unmistakable error in assignment of the effective date for service connection and granted an increased evaluation of 10 percent from July 17, 2004. The Veteran now seeks an increased evaluation from that date. Disabilities of the ulnar nerve are rated under the criteria of 38 C.F.R. § 4.124a (Diseases of the Peripheral Nerves), Diagnostic Code 8516 (complete or incomplete paralysis). A disability rating of 10 percent disability rating is awarded for mild incomplete paralysis of the minor or major extremity. A 30 percent disability rating is awarded for moderate incomplete paralysis of the major extremity. A 40 percent disability rating is awarded for severe incomplete paralysis of the major extremity. A 60 percent disability rating is awarded for complete paralysis of the ulnar nerve in the major extremity (with "griffin claw" deformity due to flexor contraction of the 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 evidence of record reflects that the left upper extremity is the Veteran's major extremity. In rating diseases 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. 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. The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive. Instead, all evidence must be evaluated. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The dominant hand will be determined by the evidence of record or by testing on VA examination. Only one hand shall be considered dominant. The injured hand or the most severely injured hand of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the evidence of record, as discussed further below, demonstrates that the Veteran is right-handed. The Evidence Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Turning to the evidence of record, the Veteran's VA treatment records, as well as his relevant lay statements, do not precede July 2004 by one year. From that date through April 2016, treatment records do not reflect complaints of or treatment for his left ring finger ulnar neuropathy. Nor do the Veteran's private treatment records contain any complaints or treatment; those records generally are pertinent to the Veteran's bilateral shoulders and hips. However, Dr. A.H.B. in January 2006 treatment notes did indicate the presence of a chronic hyperextension deformity of the Veteran's distal interphalangeal joint of the left ring finger due to the in-service injury. In March 2005, the Veteran underwent a VA examination of his left ring finger, which concentrated on the laceration injury and its scar. The March 2005 VA examiner found the range of motion of the distal interphalangeal joint to be limited by weakness, though not limited by pain, fatigue, lack of endurance, or incoordination after repetitive use. He further noted that the weakness is a result of injury to his flexor tendon; the Veteran has sensory deficit of the left ring finger ventral aspect, as well as dorsal aspect over the middle and distal phalanx; the left ring finger is hyperextended at the distal interphalangeal joint; and grip strength is slightly weaker than the right hand. The March 2005 VA examiner diagnosed the Veteran with status post left ring finger laceration with residuals of scars, sensory neuropathy and absent distal interphalangeal joint flexion. The Veteran underwent another VA examination of his left ring finger in April 2006, in which he exhibited some normal hand strength and the ability to perform ordinary grasping and gripping maneuvers. The left ring finger had a limited range of motion to 60 degrees with pain at that point in the distal interphalangeal joint. The April 2006 VA examiner noted that the left ring finger was additionally limited by pain, but not by fatigue, weakness, lack of endurance, or incoordination after repetitive motion or during flare-ups, although the examiner indicated that he was unable to determine any additional functional loss in degrees due to pain. X-rays of the left hand demonstrated early osteoarthritis in the distal interphalangeal joint of the ring finger. The April 2006 VA examiner concluded that, although the Veteran was slightly less capable of flexing the distal interphalangeal joint, it did not affect his hand power appreciably and that it did not cause substantial problems with manual or day-to-day work. She also concluded that there were no functional limitations related to the left ring finger laceration residuals. The April 2006 VA examiner diagnosed the Veteran with left ring finger strain, mild. She added that residuals are small and the Veteran scar does not interfere with function. The Veteran testified in his June 2010 Board hearing that he did not have strength in his left hand; he could not grip as strongly as his right hand; his ring finger disability did not impact his ability to work at his current work and volunteer work; however, his ring finger disability affected his ability to pursue a job in his initial field of electrical engineering, due to limitations in fine motor skills; and his pain was constant, but bearable and it increased with use. In September 2010, the Veteran presented for another VA examination of his left ring finger, in which he exhibited limitation of motion of his left ring finger, although there was no pain on range of motion noted; there was no pain or additional functional limitation of the left ring finger after repetitive use; he demonstrated reduced strength in flexion and extension of the distal and proximal interphalangeal joints of the left finger, yet without decreased dexterity. The September 2010 VA examiner noted that the Veteran had reduced range of motion with flexion at the left distal and proximal interphalangeal joints of the left ring finger, which was due to damage of the flexor tendon of that finger. X-ray findings revealed no evidence of acute displaced fracture. The September 2010 VA examiner noted the Veteran's reports of impairments in his ability to do chores, shop, exercise, participate in sports, recreation, and travel and concluded all were mild. He further noted no impairments in his ability to feed, bathe, clothe, toilet, or groom himself. The Veteran was also noted to have pain with gripping, particularly when driving. The September 2010 VA examiner concluded that the Veteran favored his right hand with all activities because of pain/weakness with prolonged/heavy use of his left hand. He diagnosed the Veteran with left ring finger laceration, with residual effects of nerve and flexor tendon damage. Another VA examination followed in September 2011. On examination, the Veteran exhibited a decrease in strength when pulling, pushing and twisting and a decrease in dexterity during twisting; range of motion testing of the left ring finger showed decreased range of motion in the distal interphalangeal joint to 60 degrees; and the left ring finger was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use. X-rays revealed old post-traumatic changes of the proximal aspect of the distal phalanx of the left ring finger. The September 2011 VA examiner concluded that the Veteran's residuals of his laceration of his left ring finger were a residual faint scar on the palmar aspect of his left ring finger; decreased dexterity with pulling and twisting of the left hand; decreased grip strength of his left hand; decreased range of motion in flexion of the distal interphalangeal joint of his left ring finger; and, a 5 degree upward angulation deformity of the distal interphalangeal joint of the left ring finger. Those residuals did not affect the Veteran's occupational or daily functioning. For the VA established diagnosis of nerve and flexor tendon damage, left ring finger, the September 2011 VA examiner changed the diagnosis to status post hyperextension injury of left ring finger with tendon and nerve laceration and scar. She once again noted decreased dexterity with pulling and twisting and decreased grip strength; decreased range of motion in flexion of the distal interphalangeal joint; the 5 degree upward angulation of the distal interphalangeal joint; and no effect on usual occupation tasks or daily activities. In June 2013, the Veteran underwent another VA examination. On examination, the June 2013 VA examiner found that there was less movement than normal of the left ring finger, although there was no other functional impairment of the left hand; there was no pain on palpitation and his left hand strength was normal; the left ring finger disability did not affect the ability to work; there were no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time; and there was not objective evidence of additional range of motion limitation, although the June 2013 VA examiner observed that "to be fair this really cannot be adequately assessed in the clinical setting as the Veteran is not gripping a heavy object or typing for a prolonged period of time." She did not change the VA established diagnosis of lacerations, left ring finger, post-hyper extension. In August 2013, a Peripheral Nerves Conditions VA examination was conducted on the Veteran's left ring finger. The VA examiner noted the VA established diagnosis of left ulnar neuropathy and found on examination that the results for reflex testing, strength testing and sensory testing for the upper extremities were all normal. Evaluation of the left ulnar nerve indicated mild incomplete paralysis. The August 2013 VA examiner concluded that the impact of the peripheral neuropathy on the ability to work is "limited from fine manipulation." She offered no change to the established VA diagnosis of nerve damage, left ring finger. In November 2016, the Veteran presented for an electromyography (EMG) and nerve conduction study. The summary of nerve conduction velocity study findings included decreased nerve conduction velocity of the left ulnar nerve across the elbow; an ulnar inching technique helped to isolate further the lesion to, at or just proximal to the medial epicondyle of the humerus; and a drop in amplitude of the ulnar nerve proximal to the elbow suggests a conduction block about this area; normal nerve conduction velocity distal to the elbow; normal nerve conduction study of the left ulnar sensory nerve; normal nerve conduction study of the left radial sensory nerves; normal nerve conduction study of the bilateral median motor and sensory nerves; and normal F-waves of the bilateral median motor and sensory nerves. The summary of EMG findings included resting abnormalities in the left ulnar nerve innervated ABP muscle (adductor pollicis brevis, i.e., the hand muscle which adducts the thumb); some polyphasic motor unit; large amplitude motor units suggesting a more chronic nerve injury; the same in shoulder and arm; no resting abnormalities; normal resting and volitional activity was seen in all muscles sampled in the left upper extremity (CT-T1); normal resting activity was seen in the left cervical paraspinal muscles; and findings overall suggest chronic injury. The impression was stated as an abnormal study; evidence of a peripheral neuropathy of the left ulnar nerve; evidence of demyelinating of the motor fibers and a conduction block about the elbow; and chronic findings on the EMG are most consistent with a chronic brachial plexopathy (damage to the network of nerves that conducts signals from the spine to the shoulder, arm and hand) involving the left upper trunk. The same month, Dr. A. H. B., the Veteran's treating specialist and the referring physician for the above tests, noted that the findings showed a degenerative pattern of the ulnar nerve. In March 2017, the Veteran underwent another VA examination. His symptoms as they pertained to his left upper extremity indicated mild constant pain; mild intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness. All other extremities exhibited no symptoms attributable to any peripheral nerve conditions. Muscle strength testing in both his hand grip and thumb-to-index finger "pinch" maneuver showed 4/5 strength. The March 2017 VA examiner did not observe any muscle atrophy; deep tendon reflexes were all normal; sensation testing for light touch for right and left-hand and fingers also was normal; and median nerve evaluation produced negative results on the right and left for Tinel's sign and Phalen's maneuver. Of the upper extremity nerves and radicular groups tested, the right ulnar nerve was noted as normal; however, the left ulnar exhibited mild incomplete paralysis. All other upper extremity nerves and nerve groups were noted as normal. In compliance with the Board's March 2017 remand directive, the March 2017 VA examiner addressed the November 2016 EMG and nerve conduction study, discussed above, and noted that the findings for the left upper extremity were abnormal, explaining that there is evidence of a peripheral neuropathy of the left ulnar nerve and chronic findings were consistent with a chronic brachial plexopathy involving the left upper trunk. Nonetheless, she also concluded the Veteran's neuropathy did not impact his ability to work. She left undisturbed the established VA diagnosis of left-ulnar neuropathy. The March 2017 VA examiner opined that the Veteran has mild left ulnar neuropathy. She explained that based on the Veteran's November 2016 EMG results, the Veteran was found to have peripheral neuropathy of the left ulnar nerve; there was also evidence of demyelination of the motor fibers and a conduction block above the elbow; chronic findings were consistent with a chronic brachial plexopathy involving the left upper trunk; the November 2016 EMG results support the Veteran's claimed condition of left-ulnar neuropathy at this time; and the Veteran's previous C&P exam showed symptoms involving the left ulnar nerve. Diagnostic Code 8516 As stated earlier in this decision, the terms used in Diagnostic Code 8516 to characterize levels of severity include "mild" for a 10 percent disability rating. "Moderate" is applicable to a 30 percent rating and "severe" for 40 percent, all of which are described as incomplete paralysis. The highest rating of 60 percent is for complete paralysis and must be exhibited by findings indicating flexor contraction of the ring and littler fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers; the inability to spread the fingers or reverse; the inability to adduct the thumb; and weakened flexion of the wrist. 38 C.F.R. § 4.124a (Diseases of the Peripheral Nerves), Diagnostic Code 8516 (complete or incomplete paralysis). Because the terms mild, moderate and severe are nowhere defined in the regulations, the Board nonetheless will apply a practical evaluation of the evidence insofar as what it unequivocally indicates or what it is stated to show by trained medical professionals. The foregoing record provides consistent indications of the level of severity of the Veteran's left ring finger ulnar neuropathy. For example, as stated above, the March 2005 the VA examiner's findings included weakness, but not limited by pain, fatigue, lack of endurance, or incoordination after repetitive use; a sensory deficit; and slightly weaker grip strength overall in the left hand. The April 2006 VA examiner found that left ring finger had a limited range of motion to 60 degrees with pain at that point; limitation by pain, but not by fatigue, weakness, lack of endurance, or incoordination after repetitive motion or during flare-up; and slightly less ability to flex, but not affecting hand power appreciably and not causing substantial problems with manual or day-to-day work. She diagnosed the Veteran with left ring finger strain, mild. Findings at the September 2010 VA examination included no pain or additional functional limitation of the left ring finger after repetitive use and reduced strength in flexion and extension and reduced range of motion, yet no decreased dexterity. The September 2011 findings included decreased dexterity with pulling and twisting and decreased grip strength; decreased range of motion; but not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use; and no effect on usual occupation tasks or daily activities. The June 2013 VA examination findings stated less movement than normal, but no other functional impairment of the left hand; normal left hand strength; the left ring finger disability did not affect the ability to work; no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time; and no observed objective evidence of additional range of motion limitation. The August 2013 Peripheral Nerves Conditions VA examination's findings included normal results for reflex testing, strength testing and sensory testing for the upper extremities; limitations in fine manipulation; and indications of mild incomplete paralysis. The November 2016 EMG and nerve conduction study findings confirmed that there was damage to the network of nerves that conducts signals from the spine to the shoulder, arm and hand. However, the March 2017 VA examiner observed that this form of neuropathy did not impact the Veteran's ability to work. The March 2017 VA examiner further found mild constant pain; mild intermittent pain; mild paresthesias and/or dysesthesias; mild numbness; the left ulnar nerve group exhibited mild incomplete paralysis. She opined that the Veteran has mild left ulnar neuropathy. In none of these examinations was any other descriptor relevant to Diagnostic Code 8516 used other than "mild," it was used in at least two instances in conjunction with incomplete paralysis and in the March 2017 examination, the most recent of the examinations, "mild" was used repeatedly. "Mild" and "incomplete paralysis" are the very terms which define a 10 percent disability rating under Diagnostic Code 8516. Moreover, the April 2006, September 2010, September 2011, and June 2013 examinations found some limitations of motion and either limitation by pain or no limitation by pain, but no further limitations by fatigue, weakness, lack of endurance, or incoordination on either repetitive use or flare-ups. The conclusions of the April 2006 and March 2017 examinations, expressed in practical terms, were that the limitations do not affect the ability to work; the September 2011 VA examiner stated they do not affect either work activities or daily activities; the April 2006 VA examiner phrased it not causing substantial problems with manual or day-to-day work; and the September 2010 VA examiner noted no loss of dexterity. The Board cannot ignore the common-sense implications of the evidence. The Veteran has some limitations due to his disability, but they have not worsened to a degree sufficient to prompt examining medical professionals in the last 12 years to choose different terminology to describe the level of severity or to make findings indicating greater functional loss. Conclusion The Board has carefully reviewed and considered the Veteran's numerous statements, as they appear as correspondence submitted between January 2006 and April 2013, his Statements in Support of Claim in June 2009 and July 2014 or as they have accompanied his notices of disagreement in August 2011 and May 2014 and his VA Form 9 in 1960. Additionally, the Board has reviewed the Veteran's Board hearing testimony and that of his wife, as well as his reports during examinations, as they appear throughout the record. All of these have assisted the Board in understanding better the nature and development of the Veteran's disability. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt their credibility. However, the Board must emphasize that neither the Veteran nor his wife are competent to diagnose or interpret accurately the past or current severity of the Veteran's left ring finger ulnar neuropathy, as this requires highly specialized knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications in the contemporaneous evidence of changes indicating a worsening condition, it must rely on medical findings and opinions. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated and based on the findings and opinions in the numerous examinations discussed at length above, the Board finds the record does not contain supporting medical findings, an adequate opinion or related factors to indicate the criteria for a disability rating under Diagnostic Code 8516 beyond 10 percent from July 17, 2004 or which indicate that the assigned rating schedule is inadequate and does not reasonably contemplate the level of severity and symptomatology of the Veteran's service-connected disability. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial evaluation in excess of 10 percent for left ulnar neuropathy, associated with left ring finger laceration residuals, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs