Citation Nr: 18147345 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-01 663 DATE: November 5, 2018 ORDER Entitlement to a rating greater than 10 percent from March 14, 2012, to July 1, 2014, for service-connected left upper extremity radiculopathy with ulnar nerve numbness adjacent to scars (previously rated as scattered left upper extremity numbness adjacent to scars, also claimed as chronic chilblains, Diagnostic Code 8599-8516) (LUE radiculopathy) is denied. Entitlement to a 40 percent rating from July 2, 2014 for service-connected LUE radiculopathy is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From March 14, 2012, to July 1, 2014, the Veteran’s service-connected LUE radiculopathy manifested by complaints of pain, tingling, and numbness consistent with no more than mild incomplete paralysis of the ulnar nerve. 2. Beginning July 2, 2014, the Veteran’s service-connected LUE radiculopathy manifested by moderate incomplete paralysis of the major extremity. 3. The Veteran’s service-connected disabilities do not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 10 percent from March 14, 2012, to July 1, 2014, for service-connected LUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8599-8516 (2017). 2. The criteria for entitlement to a 40 percent rating from July 2, 2014, and thereafter for service-connected LUE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1996 to November 1998. In a May 2018 Appellant’s Brief, the Veteran’s representative provided a generic statement that they wished to preserve for appeal all errors in VA’s compliance with the duty to assist, but did not specify an error. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a rating greater than 10 percent from March 14, 2012, to July 1, 2014, and 20 percent thereafter for service-connected LUE radiculopathy The Veteran’s service-connected LUE radiculopathy was rated under Diagnostic Codes 8599-8516 from March 14, 2012, through July 1, 2014. Neuritis of the ulnar nerve is evaluated according to the rating criteria in 8516, paralysis of the ulnar nerve. Under Diagnostic Code 8516, for the major arm, mild incomplete paralysis of the ulnar nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 30 percent disabling; and severe incomplete paralysis is rated as 40 percent disabling. Complete paralysis of the ulnar nerve warrants a 60 percent evaluation; 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 flexion of wrist weakened. 38 C.F.R. § 4.124a. The words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes 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. The use of terminology such as “severe” by VA examiners and others, 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 regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Moreover, neuritis, cranial or peripheral, 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. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. “Neuritis is defined as inflammation of a nerve, a condition attended by pain and tenderness over the nerves, anesthesia and paresthesias, paralysis, wasting, and disappearance of the reflexes.” The Veteran asserts that his service-connected LUE radiculopathy should be rated higher than the 10 percent rating from March 14, 2012, to July 1, 2014. During that time period, the Veteran had a VA examination in September 2013. At that VA examination, the examiner noted that the Veteran had mild left upper extremity numbness with a 4/5 strength for left grip. The Veteran’s dominant hand is his left hand. On the sensory examination, the examiner noted decreased inner/outer forearm (C6/T1) and hand/fingers (C6-8). The examiner stated that the claimed numbness does not uniformly correspond to the areas of decreased sensation. The examiner clarified that the scar areas do correspond; however, the non-scar areas did not. Additionally, the examiner noted another inconsistency in the Veteran’s grip strength for his left hand. When the examiner asked the Veteran to squeeze two of the examiner’s outstretched fingers, the grip appeared to be equal for both hands; however, when the grip strength was objectively tested using the grip meter device, the right-hand grip was 60 pounds and the left-hand grip was 20 pounds. The examiner was uncertain as to whether the seeming inconsistencies were due to the examiner’s error, supratentorial factors in the Veteran, or possibly the Veteran’s cervical spine pathology impinging on his nerves. The examiner specifically found that the Veteran had mild left upper extremity numbness and specifically found that the Veteran did not have constant pain, intermittent pain, or paresthesias and/or dysesthesias. His reflexes in his upper left extremity were normal. Phalen’s and Tinel’s signs were both negative. The examiner found that there was no functional impairment such that the Veteran would be equally well served by amputation with use of a prosthesis. For the entire appeal period, the Veteran has not provided a lay description of his symptoms. The preponderance of the evidence does not support a finding that the Veteran is entitled to a rating in excess of 10 percent from March 14, 2012 to July 1, 2014, because the disability is not more accurately described as moderate incomplete paralysis. Instead, his decreased grip strength and mild numbness are more consistently described as mild incomplete paralysis based on the findings of the VA examiner. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the service-connected LUE radiculopathy from March 14, 2012 to July 1, 2014, under Diagnostic Code 8516. From July 2, 2014, the Veteran’s service-connected LUE radiculopathy is rated under Diagnostic Code 8510. Under Diagnostic Code 8510, a 20 percent rating is warranted for mild incomplete paralysis of the major extremity upper radicular group. A 40 percent rating is warranted for moderate incomplete paralysis of the major extremity upper radicular group. A 50 percent rating is warranted for severe incomplete paralysis of the major extremity upper radicular group. A 70 percent rating is warranted for complete paralysis of the major extremity upper radicular group. Complete paralysis of the upper radicular group is evidence by findings such as loss of all, or severely affected, shoulder and elbow movements, while the hand and wrist movement is not affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Veteran had a VA examination in December 2014. At that VA examination, the examiner noted that the Veteran had moderate left upper extremity numbness with a 4/5 left elbow, finger, and wrist flexion and extension. The Veteran’s dominant hand is his left hand. On the sensory examination, the examiner noted normal for C5, C6/T1, and C6-8. The examiner specifically found that the Veteran had mild left upper extremity numbness and specifically found that the Veteran had constant moderate pain, severe intermittent pain, mild paresthesias and/or dysesthesias. The examiner indicated involvement of C5/C6 nerve roots and left upper extremity has moderate radiculopathy. His reflexes in his upper left extremity were normal. The examiner found that there was no functional impairment such that the Veteran would be equally well served by amputation with use of a prosthesis. The preponderance of the evidence supports a finding that the Veteran is entitled to a 40 percent rating, because the disability is more accurately described as moderate incomplete paralysis. Accordingly, the Board finds that the preponderance of the evidence is for the assignment of a 40 percent rating for the service-connected LUE radiculopathy from July 2, 2014, and thereafter under Diagnostic Code 8510. A 50 percent rating for the service-connected LUE radiculopathy from July 2, 2014, and thereafter is not warranted, because the Veteran’s disability does not manifest as severe incomplete paralysis. The VA examiner found that the Veteran had severe intermittent pain, but the other signs and symptoms of radiculopathy were considered mild or moderate. Significantly, the VA examiner classified the Veteran’s disability is moderate. The Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent from March 14, 2012 to July 1, 2014, for service-connected LUE radiculopathy and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds that a 40 percent rating for service-connected LUE radiculopathy from July 2, 2014, and thereafter is warranted. 2. Entitlement to a TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. 38 C.F.R. § 4.16 (a). Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran contends that he is unable to work due to his service-connected disabilities. Prior to July 2, 2014, the Veteran had posttraumatic stress disorder rated at 50 percent; left upper extremity radiculopathy rated at 10 percent, a cervical spine disability rated at 10 percent, and additional noncompensably rated disabilities. His combined disability rating was 60 percent. When the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2017); Fanning v. Brown, 4 Vet. App. 225 (1993). As of July 2, 2014, the 70 percent combined rating threshold was met based on his service-connected PTSD, rated at 50 percent, LUE radiculopathy, rated at 40 percent, and cervical spine disability rated at 10 percent. However, the evidence of record does not support a finding that the Veteran is unemployable due to his service-connected disabilities. Therefore, referral to the Director of the Compensation Service for consideration of an extraschedular TDIU prior to July 2, 2014 is not warranted and a schedular TDIU beginning July 2, 2014 is denied. In the Veteran’s October 2014 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, he stated that on March 1, 2013, his disabilities affected his full-time employment. He reported that he became too disabled to work on March 1, 2014. On the form he indicated that he did not leave his last job because of his disabilities and on March 5, 2014, he tried to obtain employment in maintenance. At the September 2013 VA examination, the Veteran reported his work history. After service, the Veteran worked for five years in corrections as a corrections officer at both the county and state level. He worked in the restaurant industry as a cook full-time while attending school to learn respiratory therapy. After an issue with licensing, he switched to real estate sale until “the bottom dropped out.” He then worked as a sous chef and took other seasonal jobs. He reported recently completing HVAC course work to be certified for air conditioning and seeking employment. It was noted that the Veteran’s post service work history includes frequent “light physical work.” The examiner stated that the Veteran’s job changes were not due to physical constraints, but instead due to economic factors. At his December 2014 VA examination, the Veteran reported that he completed his HVAC coursework in August 2013. Then he stated that he worked for a casino from September 2013 until February 2014, when he injured his hand in a work-accident where he “crushed” his left-index finger in a motor. The VA examiner noted that while the Veteran continued working through the pain when he was employed, overhead work is “limited” by the neck condition and that active labor is “limited,” but sedentary labor is not. The examiner noted that the Veteran had not worked since February 2014, but continues to search for work. He attributes his lack of employment to his workplace injury and potential employers not wanting to hire him, because they “don’t want to be liable.” The Veteran stated that he had some problems working around other people at the casino, and he would become anxious, hypervigilant, and angry when he had to work around other people or crowds, but that he performed his job well when put on independent tasks. He denied disciplinary problems and did not miss work excessively while at his last job. The examiner stated that the Veteran had reduced productivity at work, and noted that “…the [V]eteran would be most efficient and productive in a low stress work environment where he had limited interaction with other people and could work independently.” The evidence of record does not support a finding that the Veteran is unemployable due to his service-connected disabilities. Rather, the evidence suggests the Veteran is seeking employment, but is not obtaining employment due to a previous workplace accident. Although his PTSD symptoms cause reduced productivity when the Veteran must work around crowds, the examiner found that he could be productive when given independent work. The Board notes that the examiner also stated that the Veteran was able to do sedentary work with his neck disability. In Withers v. Wilkie, (No. 16-1543), 2018 U.S. App. Vet. Claims LEXIS 1054, the Court of Appeals for Veterans Claims held that when the Board relies on the ability to perform sedentary work as a basis for denying a TDIU, the Board must first define “sedentary work.” Id. at *16. In this case, the Board need not define “sedentary work” because the Board is not denying a TDIU based on the examiner’s finding that sedentary work is possible. It is significant that the examiner also found that the Veteran’s neck disability only “limited” his ability to do physical work, rather than using a stronger descriptor such as “prevents.” The examiner’s use of the term “limited” shows that there are restrictions or boundaries on the tasks can perform in jobs that he has had, and this implies that there are also physical tasks he is capable of performing consistent with his prior jobs. For this reason, the Board finds that the Veteran’s neck disability does not render him unemployable. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel