Citation Nr: 18158544 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-15 498 DATE: December 17, 2018 ORDER Entitlement to a rating in excess of 10 percent for right forearm muscle injury due to shell fragment wound is denied. Entitlement to a rating in excess of 10 percent prior to February 26, 2015 for right ulnar nerve neuropathy associated with right forearm muscle injury is denied. Entitlement to a rating of 40 percent, but no higher, from February 26, 2015 for right upper extremity moderate tremors due to Parkinson’s disease to include clinical right ulnar nerve neuropathy is granted. FINDINGS OF FACT 1. The Veteran’s right forearm muscle injury due to shell fragment wound results in pain, weakness, and objective findings including lowered threshold of fatigue. 2. Prior to February 26, 2015, the Veteran’s ulnar nerve neuropathy of the right upper extremity was manifested by, at worst, mild incomplete paralysis. 3. From February 26, 2015, the Veteran’s right upper extremity tremors with right ulnar nerve neuropathy has been productive of moderate incomplete paralysis of the lower radicular group. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right forearm muscle injury are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, 4.73, Diagnostic Code 5307 (2018). 2. The criteria for a rating in excess of 10 percent prior to February 26, 2015 for right ulnar nerve neuropathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, 4.73, Diagnostic Code 8516 (2018). 3. The criteria for a rating of 40 percent from February 26, 2015 for right upper extremity moderate tremors due to Parkinson’s disease to include clinical right ulnar nerve neuropathy are met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. 4.71a, 4.73, Diagnostic Code 8512 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1965 to October 1967. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Right Forearm Muscle Injury The Veteran filed a service-connection claim in February 2014 for his right forearm muscle injury that he sustained from a shell fragment wound in service. A June 2014 rating decision granted service connection and assigned a 10 percent rating under Diagnostic Code 5307, effective February 28, 2014. The Veteran’s forearm injury is rated based on muscle impairment. The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection. The history with regard to this sort of injury would include service department records of superficial wound with brief treatment and return to duty, healing with good functional results and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). The type of injury associated with a moderate muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X- ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, sacrum, or vertebrae, with epithelial sealing over the bone, rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Finally, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). The Veteran contends that the symptoms associated with his right forearm muscle injury due to shell fragment wound residuals are more severe than warranted for a 10 percent rating. Diagnostic Code 5307 pertains to hand muscles for Muscle Group VII affecting flexion of the wrist and fingers. Under the Code, a 10 percent rating is warranted for “moderate” muscle impairment of the dominant side; a 30 percent rating is warranted for “moderately severe” impairment of the dominant side; and a maximum rating of 40 percent would be warranted for “severe” impairment of flexion of the dominant side. The Veteran’s right hand is dominant. See June 2014 VA examination report. An April 2014 VA treatment note shows that the Veteran complained of chronic right lateral elbow pain that did not improve with medication. He said he had episodes of pain near his right elbow with absent sensation. He said the symptoms had been present since 1965, the time of his injury. In connection with his service connection claim, the Veteran underwent a VA muscle injuries examination in June 2014. The examiner reviewed the Veteran’s service treatment records, noted a grenade injury to the Veteran’s arm, and noted a current diagnosis of right forearm muscle injury secondary to shell fragment wound. The Veteran’s impairment involved muscle group VII of the forearm, affecting the flexors of the wrist, fingers, and thumb, and muscle group VIII, affecting the extensors of the wrist, fingers, and thumb. The Veteran described occasional pain, numbness, and hand weakness associated with the injury. It was noted that the Veteran had a penetrating muscle injury. There were no scars or fascial defects associated with the injury. The injury did not affect muscle substance or function. On physical examination, the Veteran had right-sided weakness at muscle groups VII and VIII. He had 4/5 muscle strength on wrist flexion and extension on the right side. He had 5/5 muscle strength on shoulder abduction, elbow flexion, elbow extension, and finger abduction on the right side. There was no evidence of muscle atrophy. Imaging showed evidence of retained metallic fragments; specifically, at muscle group III, a foreign body measuring 7.7 centimeters by 2.5 centimeters projecting at the soft tissue lateral to the olecranon. In conclusion remarks, the examiner reported that the Veteran had complete flexion and extension of the right elbow and wrist. Private treatment notes show that the Veteran underwent physical therapy for his right arm throughout 2014. Specifically, in August and September 2014, the Veteran displayed tremors which increased with movement, pain in his right elbow that increased when exerting force or with movement, and numbness, which increased at night. A December 2014 VA treatment note shows that the Veteran complained of right hand tremors that he associated with his in-service injury. He was evaluated for Parkinson’s disease. The Veteran underwent another VA muscle injuries examination in January 2017. The examiner noted a penetrating muscle injury. The Veteran described pain and numbness in his right forearm and right-hand weakness. On physical examination, the Veteran showed symptoms of consistent, right-sided weakness, with a lowered threshold of fatigue on the right side, which was also consistent. Muscle strength testing showed 4/5 (less than normal strength) for wrist flexion and wrist extension on the right side, with 5/5 (normal strength) for shoulder abduction, elbow flexion, and elbow extension on the right side. There was no evidence of muscle atrophy. There were no scars or fascial defects noted with the muscle injury. The examiner noted that the right elbow had complete flexion, extension, pronation, and supination. Based on the evidence of record, the Board concludes that the Veteran’s right forearm muscle injury more nearly approximates “moderate” muscle impairment of the dominant side, consistent with the 10 percent rating presently assigned. In this regard, while there are no scars associated with the injury, there is a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, namely, lowered threshold of fatigue after average use and weakness. There are no objective findings of palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side. Therefore, a rating based on moderately severe impairment does not apply. See 38 C.F.R. § 4.56(d)(3). More, neither examiner noted any other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran’s right forearm diagnosis. Finally, both examiners specifically noted that the Veteran had full elbow flexion and extension on his right side, and the January 2017 examiner also noted complete supination and pronation on the right side. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s right forearm muscle injury. In denying a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, there is no reasonable doubt to be resolved in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Ulnar Nerve Neuropathy A June 2014 rating decision granted service connection for clinical right ulnar nerve neuropathy, associated with the Veteran’s right forearm muscle injury, and assigned a 10 percent rating pursuant to Diagnostic Code 8516. In a June 2015 rating decision, the regional office discontinued the 10 percent rating for right ulnar nerve neuropathy, and combined all the Veteran’s neuropathic symptoms, including those associated with Parkinson’s disease, under Diagnostic Code 8516-8514, rated as 30 percent disabling from February 26, 2015, the date the Veteran filed a service connection claim for Parkinson’s disease. Diseases of the peripheral nerves are evaluated under the Schedule of Ratings for Diseases of the Peripheral Nerves. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8540, 8610-8630, and 8710-8730. The Veteran’s condition is currently rated under Diagnostic Code 8516 which applies to the ulnar nerve. The Veteran’s right hand is his dominant hand, so the criteria for the major extremity apply. Under Diagnostic Code 8516, a 10 percent rating is warranted for mild, incomplete paralysis. A 30 percent rating is warranted for moderate, incomplete paralysis. A 40 percent rating is warranted for severe, incomplete paralysis. A 60 percent rating is warranted for complete paralysis of the ulnar nerve. A Note following the criteria for the upper extremity nerve groups states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. Diagnostic Code 8512 rates incomplete or complete paralysis of the lower radicular group. Incomplete paralysis of the major extremity is rated 20 percent when mild, 40 percent when moderate, and 50 percent when severe. A 70 percent rating for the major extremity and a 60 percent rating for the minor extremity are warranted for complete paralysis, with all intrinsic muscles of the hand and some or all flexors of the wrist and fingers paralyzed (substantial loss of use of the hand). 38 C.F.R. § 4.124a. In addition, 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. A Note at the beginning of 38 C.F.R. § 4.124a indicates that disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that 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 words mild, moderate, moderately severe, 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 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 and that, 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; see also 38 C.F.R. § 4.123 (indicating neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe, incomplete paralysis); 38 C.F.R. § 4.124 (indicating neuralgia characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated with a maximum equal to moderate incomplete paralysis). Facts A June 2014 VA peripheral nerves examination diagnosed mild right ulnar nerve neuropathy. The Veteran described right forearm numbness and grip weakness. He said if he placed pressure over his right elbow he developed a hand tremor. The examination indicated that there was mild right upper extremity intermittent pain, and moderate right upper extremity numbness. Muscle strength testing showed 4/5 strength (active movement against some resistance) for right wrist extension and right wrist grip. All other muscle strength testing showed normal strength. There was no evidence of muscle atrophy. Sensory examination showed decreased sensation on the right inner/outer forearm and right hand/fingers. The Veteran’s gait was normal and all special tests were negative. There was mild incomplete paralysis of the right ulnar nerve noted. No other symptoms were noted. In connection with a February 2015 claim for Parkinson’s disease, the Veteran underwent a VA Parkinson’s examination in May 2015. Though the examiner in conclusion remarks noted that the Veteran’s Parkinson’s was “mild in severity,” the examination noted that the Veteran’s right upper extremity symptoms were moderate. The level of motor manifestations due to Parkinson’s ranged from mild to moderate, but not worse than moderate. On the basis of that examination, the RO granted service connection for right upper extremity moderate tremors due to Parkinson’s disease with a 30 percent rating effective February 26, 2015. In a June 2015 rating decision, as noted above, the RO discontinued the 10 percent rating that had been in effect under Diagnostic Code 8516 for right ulnar nerve neuropathy and assigned a single, 30 percent rating for right upper extremity moderate tremors due to Parkinson’s disease to include clinical right ulnar nerve neuropathy, from February 26, 2015. A September 2015 VA Parkinson’s Disease examination similarly noted that the Veteran’s right upper extremities were moderately affected due to the Parkinson’s. September 2015 and January 2017 VA peripheral nerves examinations revealed nearly identical findings. Both examinations indicated mild right upper extremity intermittent pain, moderate right upper extremity paresthesias and/or dysesthesias, and moderate right upper extremity numbness. Muscle strength testing showed 4/5 strength (active movement against some resistance) for right wrist extension and right grip. Deep tendon reflexes were normal and there was no muscle atrophy. There was decreased sensation in the right inner/outer forearm and right hand/fingers. Both examiners noted mild incomplete paralysis of the right ulnar nerve. The January 2017 VA examiner noted mild sensory deficits in the right elbow area which were not painful, and mild right-hand weakness. Period Prior to February 26, 2015 For this period, the Board finds that a rating in excess of 10 percent pursuant to Diagnostic Code 8516 is not warranted. In this regard, the June 2014 VA examination indicated mild right ulnar nerve neuropathy, and the Veteran expressed that he experienced numbness and grip weakness. The Veteran showed 4/5 muscle strength for right wrist extension and right wrist grip, and full muscle strength on all other testing. The examiner documented mild incomplete paralysis of the ulnar nerve. VA and private treatment records associated with the claims file do not provide any additional objective medical evidence that shows the Veteran’s ulnar nerve neuropathy of the right upper extremity has ever been manifested by more than mild incomplete paralysis of the ulnar nerve. Indeed, the aforementioned 2014 private physical therapy notes reflected complaints of pain, numbness, and weakness but do not suggest that the Veteran experienced moderate incomplete paralysis. Given the foregoing, the Board finds that the Veteran’s symptoms approximate mild incomplete paralysis of the ulnar nerve, and a rating higher than the 10 percent presently assigned is not warranted. Period from February 26, 2015 The Board finds that a 40 percent rating is warranted for the period from February 26, 2015, and that the Veteran’s disability, taken as a whole, is more appropriately rated under Diagnostic Code 8512, which encompasses the lower radicular group. The Board again cites to the Note following the criteria for the upper extremity nerve groups which states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. In this regard, the symptomatology associated with the Veteran’s Parkinson’s disease, which includes right upper extremity moderate tremors, was described as moderate in the May 2015 and September 2015 VA examination reports. Symptoms associated with the Veteran’s Parkinson’s have been described as ranging from mild to moderate, but not any more severe than moderate. The VA peripheral nerves examiners have described the Veteran’s right ulnar nerve neuropathy as “mild.” Indeed, the Veteran has consistently shown near normal muscle strength, with some numbness, weakness, and mild sensory deficits, normal deep tendon reflexes, normal sensory exam results, and normal gait. Based on the evidence, the Board finds that the Veteran’s symptoms of ulnar nerve neuropathy and right upper extremity moderate tremors associated with Parkinson’s Disease were no more than moderate in severity during the period from February 26, 2015. Given that his neuropathy symptoms have been clinically described as moderate, a rating higher than 40 percent for the dominant, right upper extremity is not warranted and the preponderance of the evidence is against a higher rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel