Citation Nr: 1805626 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-22 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for right hip arthroplasty, to include compensation under the provisions of 38 U.S.C. § 1151 (West 2012). 2. Entitlement to service connection for right calcar fracture, to include compensation under the provisions of 38 U.S.C. § 1151 (West 2012), and as secondary to right hip arthroplasty. 3. Entitlement to an increased rating in excess of 40 percent for neurological impairment of the right upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision, by the Cleveland, Ohio, Regional Office (RO), which denied the claims of entitlement to service connection for right hip arthroplasty and right calcar fracture; that rating action also denied the claim for a rating in excess of 40 percent for neurological impairment of the right upper extremity. The Veteran perfected a timely appeal as to these issues. On December 15, 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2017, the Board remanded the issues on appeal. As discussed in the February 2017 Remand, the Board did not take testimony with regard to entitlement to disability compensation under 38 U.S.C. § 1151 for a hip and leg disabilities as the AOJ had only partially adjudicated the claim and the Veteran testified that he was not asserting that his hip or leg disability began during service or was caused by service. For the reasons discussed below, further evidentiary development is necessary before a decision can be reached on the merits of the underlying claims for the issues of service connection for right hip arthroplasty, to include compensation under the provisions of 38 U.S.C. § 1151 and service connection for right calcar fracture, to include compensation under the provisions of 38 U.S.C. § 1151, and as secondary to right hip arthroplasty. Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for right hip arthroplasty, to include compensation under the provisions of 38 U.S.C. § 1151 and service connection for right calcar fracture, to include compensation under the provisions of 38 U.S.C. § 1151, and as secondary to right hip arthroplasty are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's neurological impairment of the right upper extremity is manifested by symptoms resulting in moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an disability rating in excess of 40 percent for neurological impairment of the right upper extremity have not all been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in a letter sent to the Veteran in November 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims. VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Neurological Impairment of the Right Upper Extremity The Veteran's right upper extremity peripheral neuropathy is currently assigned a 40 percent rating under Diagnostic Code (DC) 8513, which pertains to all radicular groups. See 38 C.F.R. § 4.124a (2017). The medical evidence of record reflects that the ulnar, median, and radial nerves of the right upper extremity are affected by peripheral neuropathy. Under DC 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups in the major or minor extremity. 38 C.F.R. § 4.124a. Moderate neuropathy warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. Severe neuropathy warrants a 70 percent evaluation for the major extremity, and a 60 percent evaluation for the minor extremity. With complete paralysis of all radicular groups in the major extremity, a 90 percent evaluation is assigned, and an 80 percent evaluation is assigned for the minor extremity. In rating peripheral 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 (2017). 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. Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities. 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 (2017). Pertinent evidence of record includes a private examination dated in December 2008, VA treatment records and VA examination reports. The evidence of record reflects that the Veteran's right upper extremity neurological impairment most nearly approximates moderate incomplete paralysis. In this regard, the Veteran has reported and received treatment for right upper extremity weakness, numbness, tingling, burning, paresthesias, and pain. Turning to the evidence, a December 1, 2008 private examination with the Ohio State University Medical Center reveals the Veteran presented with pain in the right upper extremity manifested with numbness, tingling, weakness, decreased strength, fatigue and dropping objects. The resulting examination report indicates muscle strength of the right upper extremity was 4/5 indicating active movement with some resistance. Sensation was grossly intact to fine touch and there was evidence of decreased hand grip. It is further noted that the Veteran reported employment a truck driver for several years however over the past 3 years he has been unable to drive trucks because of numbness in his right upper extremity, which worsens while driving. Additionally, the Veteran was afforded VA peripheral neuropathy examinations in June 2015 and May 2017. The resulting examination reports revealed the Veteran is right hand dominant and that sensation was diminished on vibration, pain/pinprick, and light touch testing identifying moderate incomplete paralysis of the right median nerve, ulnar nerve, and upper radicular group manifested with constant pain, paresthesias and/or dysesthesias, and numbness. There was no muscle atrophy and reflex exam was normal. Sensation was decreased in the right hand/fingers on sensation testing for light touch on examination in June 2015 and May 2017. On examination in May 2017, there was also decreased sensation in the inner/outer right forearm. Muscle strength testing was active with some resistance on examination for griping and pinching. The examiner concluded that the neurological impairment of the right upper extremity impacted the Veteran's ability to do physical work with restrictions of no heavy physical labor. The examiner also concluded that the Veteran is capable of light physical work with restrictions of no lifting or carrying greater than 25 pounds with the left arm as well as sedentary work. As the record reflects that the Veteran is right hand dominant, and thus his right upper extremity is the major extremity, the Veteran's right upper extremity peripheral neuropathy warrants a 40 percent rating. In light of the evidence above, a higher rating is not warranted, as sensation has been shown to be decreased but not completely absent, and the Veteran demonstrated normal reflexes and strength. Further, there was no evidence of muscle atrophy. Accordingly, the probative evidence of record establishes the severity of the Veteran's disability more nearly approximated moderate incomplete paralysis. A higher evaluation of 70 percent is not warranted unless the nerve damage is severe. In reaching the above conclusions the Board acknowledges the testimony of the Veteran during the Board hearing. The Veteran described symptoms of his service-connected right upper extremity disorder are more severely disabling than are reflected by the rating currently assigned and that his right upper extremity has gotten worse since his last evaluation. He stated that he can't hold things or raise his arm over his head. He explained that he is unable to hold a pen to write properly because his grip is not very good. The Veteran noted that he usually spills or drops objects; as a result, his wife won't let him hold a cup of coffee in the right hand. The Veteran reported that a doctor in Cincinnati has actually told him that the paralysis is severe. The Veteran indicated that he used to be able to raise the brush up with his right hand to brush his hair; however, he now has to lean down to brush his hair because of an inability to move. The Veteran reported that he now uses a wheelchair; however, he has difficulty moving the wheels because it causes neck pain. The Board has also considered the Veteran's reported symptoms as documented on VA examinations and during treatment. The Veteran is competent to so state his symptoms, but his opinions must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). With respect to the Veteran's reported history, under certain circumstances, lay statements may be sufficient for disability claims by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to testify to factually observable injuries and treatment, the timing of the observable symptoms of his disabilities, and receipt of medical treatment because these are observable by an individual's own senses and within the realm of knowledge of a lay person. Id. These reports must be considered with the entire record evidence. However, the Board finds the specific, reasoned opinions of the VA examiners, and the objective evidence of the trained medical professionals, who reviewed the Veteran's claims file and examined him, to be of greater probative weight than the more general lay assertions. Based on the weight of the lay and medical evidence of record, the Board finds that no more than moderate symptoms have been demonstrated throughout the appeal process. Thus, an increased rating in excess of 40 percent is not warranted. For all the foregoing reasons, the Board finds that, the preponderance of the evidence is against entitlement to higher disability rating at any time during the appellate term and there is no basis for further staged rating for the Veteran's right upper extremity disability, pursuant to Hart, and that the claim for higher rating is not warranted, and must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the right upper extremity disability, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. As discussed below, and in accord with the Secretary's concession at oral argument, the Board holds that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis. In this case, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case, the Board acknowledges the Veteran's reports that he is a retired truck driver. Further, the December 2008 private examination report indicates the Veteran reported over the past 3 years he has been unable to drive trucks because of numbness in his right upper extremity, which worsens while driving. In this regard, as discussed above, subsequent VA examination reports dated in June 2015 and May 2017, as well as the medical records do not indicate the Veteran has reported unemployability associated with his right upper extremity disability but instead reports unemployment associated with nonservice-connected right hip disorder. Further, as discussed above, the right upper extremity disability limits Veteran's ability to carry heavier objects, repetitive gripping, and overhead work in physical employment. The probative evidence of record does not show that the Veteran's disability impacts his ability to perform light physical work, other than driving a truck. As neither the Veteran nor the record has raised the question of unemployability due to service-connected disability, no further discussion of a TDIU is necessary. ORDER Entitlement to an increased rating in excess of 40 percent for neurological impairment of the right upper extremity is denied. REMAND After a review of the evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claims to include obtaining a medical opinion and outstanding records from the Social Security Administration (SSA). The Veteran essentially contends that disability compensation is warranted for disability resulting from a right hip arthroplasty which became necessary due to a right hip disability. The Veteran asserts that he suffered a right leg fracture during the right hip replacement surgery performed at a VA hospital. The Veteran maintains that the VA should take responsibility for cracking his right leg during the hip surgery, which required a second surgery to repair. The Veteran further maintains that, as a result of VA's mistake, he currently experiences chronic pain, burning and numbness in the right leg. At his personal hearing in December 2016, the Veteran specifically stated that he was not claiming that his right hip or leg disorders began in service; rather, he maintains that these disabilities resulted from the right hip surgery performed by VA. In February 2017, the Board determined that remand is necessary for the AOJ to properly develop the § 1151 aspect of the Veteran's claim and to adjudicate that aspect of his claim. By way of background, as discussed in the Board's February 2017 Remand, the January 2009 rating decision on appeal referred to the claim for hip and leg disabilities as found in a Report of Contact received August 5, 2008. That form lists the information from the Veteran as "states needs to add total hip replacement and a broken leg as a result of the hip replacement for service, for increase claim." The AOJ adjudicated this claim solely as a claim of entitlement to service connection. In his notice of disagreement, dated in March 2009, the Veteran referred only to the surgery with regard to the hip and leg and asked the AOJ to obtain his VA treatment records. He made no reference to any injury or disease incurred or contracted during service. Following issuance of the statement of the case (SOC), the Veteran expressed in his May 2009 VA Form 9 of that "VA is not taking responsibility for the bone they cracked and broke in my leg and hip area. After the mistake they made they brought me in for a second operation on my hip . . ." In October 2016 the AOJ issued a supplemental statement of the case (SSOC). That SSOC continued to deny the claim under a theory that it was not due to service. Neither that SSOC nor the earlier SOC discussed whether disability compensation was warranted under 38 U.S.C. § 1151 or provide the text of the relevant VA regulation implementing § 1151. On Remand, the RO issued a September 2017 SSOC and denied disability compensation was warranted under 38 U.S.C. § 1151. Review of the VA treatment records documents that he had a total right hip arthroplasty and surgery to repair calcar fracture done on July 7, 2008 and that the Veteran had complained that they broke his leg during hip replacement. Notably, there is no medical opinion with respect to the claims. Here, the Board cannot determine whether the Veteran currently has disability related to right hip arthroplasty and right calcar fracture as a result of total right hip arthroplasty and surgery to repair calcar fracture performed on July 7, 2008, and if so, whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the treatment or whether the consequences of the treatment were not reasonably foreseeable. The Board thus finds that remand is warranted to provide the Veteran with a VA examination and opinion that addresses whether he experienced any disability of the right hip and right calcar fracture as a result of the alleged VA lack of care/negligence while treated during right hip arthroplasty and addressing any new medical evidence added to the claims file as a result of this Remand. With regard to outstanding records, the record reflects that all treatment records have not been associated with the record. Particularly records from the SSA. A March 2010 VA orthopedic surgery note shows the Veteran underwent right hip revision in September 2009 and had an intraoperative calcar fracture. The clinician further notes that the Veteran was cautioned that it would take a full year to heal from such an extremely large surgery and that the Veteran will not be able to return to over the road truck driving but it may be possible. In a May 2017 the Veteran was afforded a VA examination to determine the severity of service-connected neurological impairment of the right upper extremity. The resulting examination report indicates the Veteran reported that he is on disability since 2014 after right hip replacement, reporting that he was a truck driver before he retired in 2014 after his right hip surgery. There is no indication in the claims file that records have been submitted by the Veteran or requested from the SSA by the AOJ. As long as a reasonable possibility exists that SSA disability records are relevant to a veteran's claim, VA is required to assist the veteran in obtaining the records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Thus, the AOJ must make necessary efforts to obtain and associate with the claims file a copy of any SSA determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2017) with respect to requesting records from Federal facilities. In view of the above-noted deficiencies, the Board finds that the medical evidence of record is still not sufficient to resolve the claims, and that, regrettably, another remand of this matter to obtain an adequate opinion-based on full consideration of the Veteran's documented history and assertions, and supported by completely, clearly-stated rationale-is needed to resolve the claims for service connection. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.310 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, for the sake of efficiency, the AOJ's adjudication of these claims should include consideration of all additional evidence received prior to and since the last adjudication in the September 2017 supplemental statement of the case that has not previously been considered. Accordingly, the case is REMANDED for the following action: 1. Request from the Social Security Administration a copy of its records pertinent to any claim of the Veteran for Social Security disability benefits, as well as copies of all medical records underlying that claim and determination. All records and/or responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. The request should follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. 2. Ensure that documentation, including signature consent, of informed consent the Veteran's July 2008 total hip replacement surgery is associated with the claims file. 3. After the above development is completed, obtain a medical opinion. The claims file must be reviewed by the examiner prior to rendering the opinion. The examiner must address the following: (a) First, identify all current disabilities of the right hip and right calcar fracture, since approximately July 2008. For any disability identified, the examiner should indicate whether it is as least as likely as not (i.e. 50 percent or greater probability that: (b) any such disabilities, was actually caused by VA treatment (specifically right hip arthroplasty performed in July 2008 and followup treatments), and (c) if actually caused by VA treatment, whether it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. (d) If the examiner determines that any such disability was actually caused by VA treatment but that it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, then the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability or disabilities were due to an event not reasonably foreseeable? In so opining, the examiner must note review of, and specifically consider and discuss, the pertinent medical records. A comprehensive explanation and clearly stated rationale must be provided for any opinion rendered. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case, and afford them the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (West 2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs