Citation Nr: 18154544 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 10-19 473 DATE: December 4, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for residuals of left carponavicular or scaphoid bone fracture (non-dominant) with nonunion is denied. Entitlement to an increased rating in excess of 10 percent for residuals of right carponavicular or scaphoid bone fracture (dominant) with nonunion is denied. Entitlement to an earlier effective date of October 28, 2008 and a higher rating of 30 percent for carpal tunnel syndrome with ulnar neuropathy, left upper extremity associated with residuals of left carponavicular or scaphoid bone fracture (non-dominant) with nonunion is granted. Entitlement to an earlier effective date of October 28, 2008 and a higher rating of 30 percent for ulnar neuropathy, right upper extremity associated with residuals of right carponavicular or scaphoid bone fracture (dominant) with nonunion is granted. FINDINGS OF FACT 1. The Veteran's left carponavicular or scaphoid bone fracture with nonunion is not manifested by favorable or unfavorable ankylosis, or loss of use of the left hand; he does have moderate incomplete paralysis of the affected median and ulnar nerves. 2. The Veteran's right carponavicular or scaphoid bone fracture with nonunion is not manifested by favorable or unfavorable ankylosis, or loss of use of the right hand; he does have moderate incomplete paralysis of the affected ulnar nerve. 3. The Veteran’s claim for an increased rating was received on October 28, 2008. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for residuals of left carponavicular or scaphoid bone fracture (non-dominant) with nonunion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5215 (2018). 2. The criteria for an increased rating in excess of 10 percent for residuals of right carponavicular or scaphoid bone fracture (dominant) with nonunion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.71a, Diagnostic Code 5215 (2018). 3. The criteria for an earlier effective date of October 28, 2008 and a higher rating of 30 percent for carpal tunnel syndrome with ulnar neuropathy, left upper extremity are met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8513 (2018). 4. The criteria for an earlier effective date of October 28, 2008 and a higher rating of 30 percent for ulnar neuropathy, right upper extremity are met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8516 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1978 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion Diagnostic Codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the Diagnostic Codes for limitation of motion. Under Diagnostic Code 5215, a 10 percent rating for the wrist is warranted for either limitation of palmar flexion in line with the forearm or limitation of dorsiflexion to less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The 10 percent disability rating is the maximum evaluation under Diagnostic Code 5215. 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. Under 38 C.F.R. § 4.124a, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. 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. § 4.123. Diagnostic Code 8515 provides the rating criteria for paralysis of the nerves of the median nerve. A 10 percent evaluation is warranted for incomplete paralysis of the median nerve that is mild. A 20 percent evaluation is warranted for incomplete paralysis of the minor extremity median nerve that is moderate. A 30 percent evaluation is warranted for incomplete paralysis of the major extremity median nerve that is moderate. A 40 percent evaluation is warranted for incomplete paralysis of the minor extremity median nerve that is severe. A 50 percent evaluation is warranted for incomplete paralysis of the major extremity median nerve that is severe. A 60 percent evaluation is warranted for complete paralysis of the minor extremity median nerve where the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. A 70 percent evaluation is warranted for complete paralysis of the major extremity median nerve where the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a. Diagnostic Code 8513 provides the rating criteria for paralysis of the nerves of all radicular groups where incomplete paralysis of the minor extremity is rated 20 percent when mild, 30 percent when moderate, and 60 percent when severe. A 80 percent rating is warranted for complete paralysis. Diagnostic Code 8513 provides the rating criteria for paralysis of the nerves of all radicular groups where incomplete paralysis of the major extremity is rated 20 percent when mild, 40 percent when moderate, and 70 percent when severe. A 90 percent rating is warranted for complete paralysis. Diagnostic Code 8516 provides the rating criteria for paralysis of the ulnar nerve where incomplete paralysis of the minor extremity is rated 10 percent when mild, 20 percent when moderate, and 30 percent when severe. A 50 percent rating is warranted for complete paralysis. Diagnostic Code 8516 provides the rating criteria for paralysis of the ulnar nerve where incomplete paralysis of the minor extremity is rated 10 percent when mild, 30 percent when moderate, and 40 percent when severe. A 60 percent rating is warranted for complete paralysis. Where, as is the case here, there are combined nerve injuries, the rating is assigned based on the major involvement, or if sufficient in extent, consideration is to be given to radicular group ratings. 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. 5110 (b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board notes that the Veteran is right hand dominant. In a December 1981 rating decision, service connection for residuals of bilateral wrist fractures were granted, and each wrist was assigned a 10 percent disability rating under Diagnostic Code 5299-5215. The Veteran’s claim for an increased rating was received on October 28, 2008. The VA examinations dated in January 2009, October 2010, November 2010, December 2013, September 2017, July 2018 VA examinations showed limitation of motion in the wrists and the Veteran complained of associated functional and neurological impairment. No muscle injury was identified. Additionally, the July 2018 VA examination showed normal median nerve on the right and mild incomplete paralysis of the median nerve on the left. There was moderate incomplete paralysis of the ulnar nerve on the right and left. In a July 2018 rating decision, the RO awarded service connection for ulnar nerve neuropathy, right upper extremity and assigned a 10 percent rating under Diagnostic Code 8516 effective October 8, 2010. The evaluation for carpal tunnel syndrome with ulnar nerve neuropathy of the left upper extremity was increased from 10 percent to 20 percent under Diagnostic Code 8513 effective October 8, 2010. The Board first notes that no higher disability evaluation under Diagnostic Code 5215 may be assigned for the Veteran's wrist disabilities, as 10 percent is the maximum evaluation possible under that Diagnostic Code. Also, where a musculoskeletal disability is currently evaluated at the maximum schedular rating based on limitation of motion, DeLuca consideration is not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Therefore, no higher rating based on limitation of motion of the Veteran's wrists is possible. In light of the July 2018 VA examination findings of moderate incomplete paralysis of the ulnar nerves and the Veteran’s complaints throughout the appeal period, the Board finds that he is entitled to increased ratings (30 percent for the left upper extremity and 30 percent for the right upper extremity) effective the date of his claim, October 28, 2008. While the Veteran’s representative argued in the September 2018 Informal Hearing Presentation that consideration should be made for evaluations under DC 5307, the Veteran’s service connected disabilities did not involve a muscle injury and there is no such impairment associated with the service connected disabilities. Additionally, after further consideration of the Veteran’s complaints, the Board finds that the Veteran’s symptoms have been contemplated by the assigned disability ratings and that he has not described any exceptional or unusual symptoms associated with his service connected disabilities or described any functional impairment associated with his service connected disabilities that has affected him in an exceptional or unusual manner. Thus, referral for extra-schedular consideration is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel