Citation Nr: 18158875 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 13-26 656 DATE: December 19, 2018 ORDER Entitlement to a rating in excess of 10 percent prior to February 21, 2012, for right ulnar neuropathy, residual of right wrist fracture, is denied. Entitlement to a rating in excess of 40 percent from February 21, 2012, forward, for right ulnar and median neuropathy is denied. REMANDED Entitlement to a rating in excess of 10 percent for right wrist tendinitis, status post fracture, with traumatic arthritis is remanded. FINDINGS OF FACT 1. Prior to February 21, 2012, the Veteran’s right ulnar neuropathy resulted in mild incomplete paralysis with symptoms of decreased grip strength and pain. 2. From February 21, 2012, forward, the Veteran’s right ulnar and median neuropathy manifested in moderate incomplete paralysis of the lower radicular group with symptoms of pain, decreased grip strength, and limited mobility. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to February 21, 2012, for ulnar neuropathy, residual of right wrist fracture, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8516. 2. The criteria for entitlement to a rating in excess of 40 percent from February 21, 2012, forward, for right ulnar and median neuropathy, residual of right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8512. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to November 1999. He also had a period of service with the National Guard from August 1988 to November 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In May 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of that hearing has been associated with the claims file. In September 2016, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. A March 2017 rating decision granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). As this represents a full grant of the benefits sought, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In August 2018, the Veteran was informed that the VLJ who held the May 2014 hearing was no longer with the Board and that he could have an additional hearing if he chose. The letter also explained that if the Veteran did not respond within 30 days of the letter, the Board will assume he did not want an additional hearing and proceed with the appeal. As the 30 days have passed without response from the Veteran, the Board will proceed with the appeal. Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). The Veteran’s service-connected neuropathy is rated as 10 percent disabling prior to February 21, 2012 under Diagnostic Code 8516, and as 40 percent disabling thereafter under Diagnostic Code 8512. See November 2012 Rating Decision (granting entitlement to service connection for the median nerve and recharacterizing the Veteran’s service-connected disability as neuropathy of the median and ulnar nerves). The Veteran is right hand dominant. See January 2017 Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ). Accordingly, his right upper extremity is his major extremity. DC 8516 rates incomplete or complete paralysis of the ulnar nerve. Incomplete paralysis of the major extremity is rated 10 percent when mild, 30 percent when moderate, and 40 percent when severe. A 70 percent rating for the major extremity is warranted for complete paralysis, 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. 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 is 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). Id. The words “mild,” “moderate,” and “severe” are not defined in 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. The term “incomplete paralysis,” with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. A September 2008 VA examiner found that the Veteran had incomplete paralysis of the ulnar nerve with mild impairment of finger and wrist movements. The Veteran reported right hand weakness with electrical shooting pains which worsened in cold weather. His right hand muscle strength was 4 out of 5, and his motor function impairment resulted in a poor grip. See September 2008 Peripheral Nerves Examination Report. An April 2012 VA examination report reflected the Veteran experienced moderate intermittent pain, with mild constant pain, paresthesias, and numbness. The examiner noted the Veteran’s wrist flexion, grip, and pinch strengths were 4 out of 5, and atrophy was not indicated. The Veteran’s reflex and sensory examinations were noted as normal. The examiner found that the Veteran experienced mild incomplete paralysis of the median nerve and moderate incomplete paralysis of the ulnar nerve. See April 2012 Peripheral Nerves Disability Benefits Questionnaire (DBQ) At the May 2014 Board hearing, the Veteran testified that he experiences severe pain which radiates into his neck and right shoulder. He also stated he wears a metal wrist brace. The Veteran further stated he needs to soak his hand in hot water in the morning in order to have it function. See May 2014 Hearing Transcript. A January 2017 VA examination report reflected the Veteran experienced constant severe pain with intermittent sharp pain. He reported difficulty in doing most activities with his right hand, including tying laces, buttoning buttons, and holding objects. He further reported severe pains keeping him in bed, hand cramps up to three times a week, and touching hot and cold objects caused pains and a burning sensation. The examiner recorded his muscle strength tests as 4 out of 5 for wrist flexion and extension, and 3 out of 5 for grip and pinch. A reflex examination was normal, and the Veteran had decreased sensory examinations for his inner and outer forearm and hand and fingers. The examiner found the Veteran to have mild incomplete paralysis of the median nerve and moderate incomplete paralysis of the ulnar nerve. See January 2017 Peripheral Nerves DBQ. The competent evidence of record demonstrates that the Veteran’s neurologic impairment as a residual of his right wrist fracture does not support the assignment of a rating in excess of 10 percent prior to February 21, 2012, or to a rating in excess of 40 percent thereafter. See 38 C.F.R. § 4.124(a). In this regard, prior to February 21, 2012, the competent evidence reflects that the Veteran’s ulnar neuropathy resulted in, at worst, mild incomplete paralysis with pain, stiffness, paresthesias, and weakness. Additionally, the September 2008 VA examiner found the Veteran to have mild incomplete paralysis of the ulnar nerve with mild impairment of the finger and wrist. See September 2008 Peripheral Nerves Examination Report. Further, from February 21, 2012, forward the evidence does not support the criteria for an evaluation in excess of 40 percent under Diagnostic Code 8512, because the Veteran’s incomplete paralysis is not considered severe. Although the Veteran complained of severe constant pain as well as occasional sharp pain, the VA examiner found that based on clinical evaluations there was evidence of only mild to moderate nerve impairment and there was no evidence of complete paralysis of the lower radicular group. At worst, the Veteran’s grip and pinch strength were 3 out of 5 and his sensory deficit was evaluated as decreased. His neurologic impairment in the right upper extremity does not more closely approximate severe incomplete or complete paralysis of the lower radicular group. Further, in addition to the reasons discussed above with regard to Diagnostic Code 8512, the criteria for an evaluation in excess of 40 percent under Diagnostic Code 8516 are not met because his symptoms do not more closely approximate complete paralysis (a 60 percent rating for major upper extremity). While the Veteran has reported flare-ups in symptoms that result in locking of his right hand to where he is unable to use his hand, none of the objective evidence shows findings of “griffin claw” deformity or the loss of the extension of his right and little fingers. See 38 C.F.R. § 4.124(a), Diagnostic Code 8516. In addition, the objective evidence does show findings of “ape hand” or considerable muscle atrophy in the hand and fingers to support complete paralysis of the median nerve under Diagnostic Code 8515. See 38 C.F.R. § 4.124(a). An evaluation in excess of 40 percent for right ulnar and median neuropathy is not warranted. See 38 C.F.R. § 4.124(a). The Board has considered the Veteran’s lay statements concerning the symptoms of the service-connected disability and his medical history. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. However, laypersons do not have the competence to render an opinion as to the diagnosis or level of severity of a neurologic disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The VA examination findings are competent and credible evidence concerning the nature and extent of the Veteran’s right ulnar and median neuropathy. The medical professionals examined the Veteran during the current appeal period, and the examiners rendered pertinent opinions in conjunction with the evaluations. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. In sum, the criteria for a disability rating in excess of 10 percent prior to February 21, 2012 for ulnar neuropathy, and to a rating in excess of 40 percent thereafter, for ulnar and median neuropathy have not been met. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board has considered whether the severity of the Veteran’s disability warrants referral for consideration of an extraschedular rating. An extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1) if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Veteran asserts that referral for extraschedular consideration is warranted because the rating schedule does not adequately consider all of the symptomatology associated with his right wrist neurologic impairment, and in particular, the episodes of pain that result in his inability to use his hand. See August 2018 Appellate Brief. The Board finds that the Veteran’s disability picture is adequately contemplated by the rating schedule. The Veteran’s service-connected neurologic impairment is primarily manifested by pain, decreased grip strength, tingling, numbness, and moderate lower radicular nerve group involvement that results in pain and functional impairment of the right hand. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule which contemplates functional impairment due to degrees of paralysis associated with nerve injury. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for right wrist tendinitis, status post fracture, with traumatic arthritis is remanded. The Veteran’s claim must be remanded for a new examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the U.S. Court of Appeals for Veterans Claims (Court) held that for VA examinations to be adequate for rating musculoskeletal disabilities, they must record range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Correia, 28 Vet. App. 158 at 169-70 (citing 38 C.F.R. § 4.59 (2016). If the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she should clearly explain why what that is so. Id. at 170. The January 2017 VA examination report provides range of motion results for the right wrist and the undamaged left wrist, but does not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or nonweight-bearing), or provide results for each type of test, as required under Correia. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. As this is a determination that requires medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, additional development is required concerning this claim. Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matter is REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from March 2017, forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected right wrist tendinitis. The claims folder and a copy of this REMAND must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examination should be performed in accordance with the Disability Benefits Questionnaire(s) (DBQs). The examiner is to specifically test the range of motion of the right wrist and the left wrist in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Any opinions expressed by the examiner must be accompanied by a complete rationale. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel