Citation Nr: 1806732 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 05-10 765A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to an increased rating in excess of 10 percent for residuals of a gunshot wound to the left upper extremity with paresthesia, weakness, and limitation in extension of the left elbow and forearm prior to December 10, 2012, and 20 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran had active military service from October 1966 to October 1969 and from December 1969 to December 1972. The Veteran received a Purple Heart and a Republic of Vietnam Gallantry Cross, among other decorations. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The April 2004 rating decision continued a previously-assigned 10 percent disability rating for the Veteran's service-connected residuals of a gunshot wound to the left upper extremity with paresthesia, weakness, and limitation in extension of the left elbow and forearm. The Board remanded the claims in September 2007, February 2010, February 2012, April 2013, and February 2017 so that additional development of the evidence be conducted. The case has been returned to the Board for further appellate review. A video conference hearing was held in August 2007, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony is associated with the claims folder. A January 2013 RO rating decision increased the disability evaluation assigned to the Veteran's service-connected gunshot wound residuals to 20 percent, effective from December 10, 2012. As the Veteran is in receipt of less than the maximum schedular rating for this disorder, the matter therefore remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT 1. Throughout the appeal period, the Veteran's residuals of a gunshot wound to the left upper extremity with paresthesia, weakness, and limitation in extension of the left elbow and forearm was manifested by objective findings of: flexion limited at 105 degrees, at worst; extension limited to 95 degrees, at worst; pronation with motion lost beyond the last quarter of the arc; and mild incomplete paralysis of the left ulnar nerve. CONCLUSIONS OF LAW 1. Prior to December 10, 2012 the criteria for a disability rating of 20 percent, and no higher, for limitation in extension related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness have been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5207 (2017). 2. From December 10, 2012 the criteria for a disability rating in excess of 20 percent, for limitation in extension related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5207 (2017). 3. Prior to December 10, 2012 the criteria for a disability rating of 20 percent, and no higher, for pronation related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness have been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5213 (2017). 4. From December 10, 2012 the criteria for a disability rating in excess of 20 percent, for pronation related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5213 (2017). 5. The criteria for a separate 10 percent evaluation for ulnar neuropathy of the left upper extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Rating Disabilities in General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left elbow condition is rated under Diagnostic Code 5207, forearm, limitation of extension. 38 C.F.R. § 4.17a. The Veteran is right-hand dominant per his report at his March 2017 VA examination. Therefore, his left arm is his minor arm. Under Diagnostic Code 5207, a 40 percent rating is warranted for the minor arm when a Veteran's extension is limited to 110 degrees. A 30 percent rating is warranted for the minor arm when extension is limited to 100 degrees. A 20 percent rating is warranted for the minor arm when extension is limited to 90 degrees. A 20 percent rating is warranted for the minor arm when extension is limited to 75 degrees. A 10 percent rating is also warranted for the minor arm when extension is limited to 45 degrees or 60 degrees. The Board will also consider Diagnostic Code 5206, forearm, limitation of flexion. 38 C.F.R. § 4.17a. A 40 percent rating is warranted for the minor arm when flexion is limited to 45 degrees. A 30 percent rating is warranted for the minor arm when flexion is limited to 55 degrees. A 20 percent is warranted for the minor arm when flexion is limited to 70 degrees. A 20 percent rating is warranted with flexion is limited to 90 degrees. A 10 percent rating is warranted for the minor arm with flexion limited to 100 and noncompensable at 110 degrees. Analysis The Veteran received a VA examination in December 2003. The examination report notes the Veteran left elbow with flexion of 30 degree to 135 degrees. The Veteran's pronation was demonstrated as 60 degrees with supination of 85 degrees. The examination further reflects the Veteran denied any parathesias. A VA medical examination was obtained in May 2006. The examination report noted the Veteran's left elbow with extension to 30 degrees and flexion to 120 degrees. The report further noted pain free pronation of 60 degrees and supination of 85 degrees. VA medical records reflect the Veteran with left ulnar pain and a subsequent diagnosis of left ulnar neuropathy. (See May 2007 and June 2007 VA medical treatment records). In a March 2009 VA medical examination the Veteran's left elbow/arm was noted with pronation from 0 to 30 degree and supination from 0 to 20 degrees. Additionally, the examination report noted the Veteran with left ulnar neuropathy. In a May 2010 VA medical addendum, the examiner noted the Veteran's left elbow with flexion to 115 degrees that diminished to 105 degrees on repetition and extension to 40 degrees that diminished to 50 degrees on repetition. The examiner further noted the Veteran with pronation to 30 degrees and supination to 20 degrees. An October 2011 VA medical examination reflects the Veteran with left elbow flexion limited to 130 degrees and extension limited to 95 degrees. The examination report further noted the Veteran with ankylosis of the left elbow at an angle of more than 90 degrees. Further, the examination report notes the Veteran with limited pronation with motion lost beyond the last quarter of the arc. A February 2012 VA medical addendum reflects the Veteran with flexion to 130 degrees and extension at 110 degrees. The addendum further reflects the Veteran with limited pronation and supination due to severe pain. A December 2012 VA medical examination reflects the Veteran with left elbow flexion limited to 130 degrees and extension limited to 95 degrees. The examination report further noted the Veteran without ankylosis of the left elbow. Further, the examination report notes the Veteran with limited pronation with motion lost beyond the last quarter of the arc. The examiner noted while the Veteran does not have ankylosis, he holds his left arm in flexion at 95 degrees or 100 degrees. The examiner concluded that the Veteran's left arm range of motion in flexion is only from either 95 degrees or 110 degrees to 130 degrees. A November 2013 VA medical examination reflects the Veteran with left elbow flexion limited to 130 degrees and extension limited to 90 degrees. The examination report further noted the Veteran without ankylosis of the left elbow. Further, the examination report notes the Veteran with limited pronation with motion lost beyond the last quarter of the arc. The examiner noted while the Veteran does not have ankylosis, he holds his left arm in flexion at 95 degrees or 100 degrees. The examiner concluded that the Veteran's left arm range of motion in flexion is only from either 95 degrees or 110 degrees to 130 degrees. A March 2017 VA medical examination reflects the Veteran with left elbow flexion limited to 135 degrees and extension limited to 90 degrees. The examination report further noted the Veteran without ankylosis of the left elbow. Further, the examination report notes the Veteran with limited pronation with motion lost beyond the last quarter of the arc. Further a March 2017 VA medical examination noted the Veteran's left ulnar neuropathy severity as mild. Based on the above, the Board finds that prior to December 10, 2012; a separate 10 percent disability rating is warranted for mild incomplete paralysis of the Veteran's left ulnar nerve. Diagnostic Code 8516 provides for a 10 percent schedular disability rating for mild symptoms involving the ulnar nerve of either the major or minor side. With moderate symptoms involving the ulnar nerve, a 20 percent rating is assignable for the minor side. With severe symptoms involving the ulnar nerve, and a 30 percent rating is assignable for the minor side. With complete paralysis of the ulnar nerve, a 50 percent rating is assignable for the minor side. Symptoms of complete paralysis are noted to include 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; and flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516. As noted above, the Veteran complained of and was treated for ulnar neuropathy. (See May 30, 2007 VA medical treatment records). Further a March 2017 VA medical examination noted the Veteran's left ulnar neuropathy severity as mild. As such, a separate disability separate rating of 10 percent, and no higher, is warranted. As noted above, the VA medical examination on October 18, 2011 noted the Veteran with left elbow at an angle of more than 90 degrees and pronation with motion lost beyond the last quarter of the arc. Under Diagnostic Code 5213, limitation of pronation with motion lost beyond the last quarter of the arc is rated 20 percent disabling for the minor side. 38 C.F.R. § 4.71a. This is the maximum rating possible for limitation of pronation; an increased 30 percent evaluation is only warranted under Diagnostic Code 5213 if the minor hand is fixed in supination or hyper pronation due to loss (bone fusion). Id. As the October 18, 2011 VA medical examination clearly notes the Veteran with pronation with motion lost beyond the last quarter of the arc, the Veteran is entitled to a 20 percent disability rating under DC 5213, prior to December 10, 2012. The Board finds that an increased rating of 20 percent for residuals of a gunshot wound to the left upper extremity with paresthesia, weakness, and limitation in extension of the left elbow and forearm prior to December 10, 2012. As noted, the October 18, 2011 VA examination and subsequent examination reflect the Veteran's left elbow/arm disability to be manifested by extension limited to at least 90 degrees. Thus, a disability rating of 20 percent is warranted under Diagnostic Code 5207, forearm, limitation of extension prior to December 10, 2012. A rating in excess of 20 percent under Diagnostic Code 5207 is not warranted as the evidence does not reflect limitation of extension limited to 100 degrees or more. The Board further finds that a separate rating under Diagnostic Code 5206, forearm, limitation of flexion is not warranted as the medical evidence does not reflect the Veteran's left elbow/forearm disability was manifested by flexion limited to 110 degrees or less. The Board acknowledges the November 2013 VA medical report in which the examiner concluded the Veteran's left arm range of motion in flexion is only from either 95 degrees or 110 degrees to 130 degrees. However, upon examination within the same report, the Veteran was noted with left elbow flexion limited to 130 degrees. Further, Diagnostic Code 5205 for ankylosis of the elbow provides there where there is favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, a 30 percent rating is warranted for the minor elbow. For intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, a 40 percent is assigned for the minor elbow; and for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, a 50 percent rating is warranted for the minor elbow. 38 C.F.R. § 4.71a, Diagnostic Code 5205. Here, the Board finds that a rating under Diagnostic Code 5205 for ankylosis of the elbow is not applicable. The Board notes that while the Veteran's left elbow is limited in motion, the claims folder reflects that the Veteran does not have ankylosis within the elbow. The Board acknowledges the October 2011 VA medical examination which noted ankylosis of the left elbow at an angle of more than 90 degrees. However, ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). Here, the evidence is against a finding of ankylosis based on the Veteran's left elbow range of motion. The Board has considered whether there are any other applicable diagnostic codes which would provide a higher rating, but the Board finds there is not. Total rating for compensation purposes based on individual unemployability (TDIU) Finally, the Board is cognizant that a claim for a total rating based upon individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the RO awarded the Veteran TDIU, effective February 18, 2011, for his service-connected disabilities, to include for residuals of a gunshot wound to the left upper extremity with paresthesia, weakness, and limitation in extension of the left elbow and forearm. Therefore, the issue of entitlement to TDIU is moot in this instance. ORDER Entitlement to an increased rating of 20 percent, and no higher, prior to December 10, 2012, for limitation in extension related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness is granted. Entitlement to an increased rating in excess of 20 percent for limitation in extension related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness from December 10, 2012 is denied. Entitlement to an increased rating of 20 percent, and no higher, prior to December 10, 2012, for impairment of pronation related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness is granted. Entitlement to an increased rating in excess of 20 percent for impairment of pronation related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness from December 10, 2012 is denied. Entitlement to a separate disability rating of 10 percent, and no higher for mild incomplete paralysis of the Veteran's left ulnar nerve related to the residuals of a gunshot wound to the left upper extremity with paresthesia, and weakness is granted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs