Citation Nr: 1815047 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-02 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether a reduction from a 50 percent disability rating to a 40 percent disability rating for the service-connected right hand injury effective May 1, 2014, was proper. 2. Entitlement to an evaluation in excess of 50 percent for the service-connected right hand injury. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and February 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The issues on appeal were before the Board in December 2016 and were remanded for additional evidentiary development. They are now again before the Board for adjudication. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In August 2010, the RO issued a rating decision awarding a 50 percent rating for the Veteran's service-connected right hand injury, effective April 9, 2009; this rating was based upon a September 2009 factual finding of moderate to severe median motor and sensory neuropathy. 2. The reduction in the right hand rating was predicated upon finding clear and unmistakable error (CUE) in the August 2010 rating decision based upon the findings within a subsequent, November 2011, VA examination report. 3. The Veteran's service-connected right hand injury was not manifested by complete paralysis of any radicular group or nerve at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The reduction of the rating for the service-connected right hand disability from 50 percent to 40 percent was not proper, and restoration of the 50 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.7, 4.124a, Diagnostic Codes 8512-8515 (2017). 2. The criteria for a rating in excess of 50 percent for the service-connected right hand injury are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8599-8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Reduction By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.104(a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). In this case, evaluation of the propriety of the rating decision issued in February 2014 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. If CUE was not present in the 2014 decision, then there is no basis for the reduction. If CUE was present in the 2014 rating decision, because the remedy used to correct such error was reduction, the proper procedures governing reduction must be observed. As explained below, the Board finds that CUE is not shown in the August 2010 rating decision and, therefore, a discussion of the proper reduction procedures is not necessary in this case. In April 2009, the Veteran filed a claim for an increased rating for his right hand injury. In August 2010, the RO issued the rating decision at issue and awarded a 50 percent rating, effective April 9, 2009, and also recharacterized the disability as right hand injury with right radical nerve neuropathy. The RO largely based this rating on the Veteran's reports of symptoms and September 2009 "EMG/NCV findings suggestive of chronic neurogenic changes affecting the FDI, APB, ECU, bicep and tricep muscles and the peripheral nerve conduction test showed findings suggestive of moderate to severe median motor and sensory neuropathy at the wrist." In October 2012, the RO informed the Veteran that it had previously incorrectly determined that a 50 percent rating was warranted, because a November 2011 VA examination found moderate incomplete paralysis, which warrants a 40 percent rating under the pertinent rating criteria. For this reason, the RO proposed the reduction to 40 percent. The RO later issued the February 2014 rating decision reducing the rating to 40 percent, effective May 1, 2014. Under the appropriate regulations, a 50 percent rating is warranted for severe incomplete paralysis of the radial nerve and of the medial nerve. 38 C.F.R. § 4.124a, Diagnostic Codes 8514 and 8515. Moderate incomplete paralysis of the same nerves warrants a 30 percent rating. Id. Moderate incomplete paralysis of the lower radicular group warrants a 40 percent rating and severe incomplete paralysis of the lower radicular group warrants a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Although there are no overwhelming indications of severe incomplete paralysis of any nerve in the record at the time of the August 2010 rating decision, there was a reasonable basis for assigning the 50 percent rating. In particular, the findings within the September 2009 diagnostic testing report showing moderate to severe median nerve impairment. Given an indication of the potentially severe level of impairment, there was a reasonable basis for the award of the 50 percent rating. In fact, it appears that the basis for the reduction were the findings of a later, November 2011, VA examination report. See October 2012 and February 2014 rating decisions. This VA examination report was not in existence at the time of the August 2010 rating and, therefore, cannot be used the basis for CUE. The August 2010 rating decision does not contain CUE with regard to the assignment of a 50 percent rating for the service-connected right hand injury. 38 C.F.R. §§ 3.104(a), 3.105(a). Because the February 2014 rating decision cited only CUE in the August 2010 rating as the basis to reduce the rating, it is erroneous; the 50 percent rating is restored. See 38 C.F.R. §§ 3.104(a), 3.105(a), 4.124a, DC 5299-8515. Increased Rating In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected right hand injury on appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the 50 percent rating for the Veteran's right hand injury has been restored, the Veteran's increased rating appeal is limited to the question of whether a rating in excess of 50 percent is warranted. The Veteran filed this increased rating claim in April 2009. The Veteran's right hand disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8599-8512. Historically, the Veteran's disability has also been rated under Diagnostic Codes 8599-8514 and 8599-8515. The hyphenated ratings show the Veteran's right hand injury is rated analogous to paralysis of the impacted radicular group or nerve. See 38 C.F.R. § 4.27 (2017) (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). Diagnostic Code 8512 pertains to paralysis of the lower radicular group and a rating in excess of 50 percent requires complete paralysis, which the rating criteria describes as paralysis of all intrinsic muscles of the hand and some or all of flexors of wrist and fingers with substantial loss of use of the hand. Diagnostic Code 8514 pertains to the musculospiral (radial) nerve and a rating in excess of 50 percent requires complete paralysis, which is manifested by drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairing the hand grip seriously; total paralysis of the triceps occurring only as the greatest rarity. Diagnostic Code 8515 pertains to the median nerve and a rating in excess of 50 percent requires complete paralysis, which is manifested by 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; pain with trophic disturbances. The Veteran filed this increased rating claim in April 2009. In August 2009, he submitted a statement indicating he is limited using his right hand and having to learn to do things with his non-dominant left hand. The Veteran submitted copies of some records from the Social Security Administration in August 2009, which show a notation of an April 2008 Social Security Disability Physical Examination indicating the Veteran reported a somewhat weak feeling in his right hand with a tendency to drop things on that side. The clinician recognized the Veteran's reported history, but concluded that "he has very few findings related to his hand." At the time of the September 2009 VA examination report, the Veteran described constant pain and difficulty with grasping and carrying. Peripheral nerve conduction testing at that time revealed findings suggestive of moderate to severe median motor and sensory neuropathy at the wrist. The examiner diagnosed right radial serve neuropathy secondary to the in-service crush injury. In February 2010, the Veteran was afforded a VA examination in relation to his TDIU claim. The examiner recognized the Veteran's right hand will affect his employment due to limitations in use caused by pain, fatigue, and lack of endurance. No further explanation of the symptoms of the hand was provided in this report. In September 2011, the Veteran reported experiencing excessive pain and numbness from his right hand up to his arm. He reported being unable to lift things and open jars with his right hand. His wife also submitted a statement at this time noting her observation of his weakness, numbness, and loss of grip strength. The Veteran was then afforded another VA examination in November 2011. This examiner noted the presence of right median and radial nerve neuropathy. The examiner noted the Veteran's constant severe pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was normal as was wrist movement, but grip and pinch (thumb to index finger) were noted a 4/5, active movement against some resistance. There was no muscle atrophy and the reflex examination was normal. The examiner noted decreased sensation to light touch in the hand/fingers. Phalen's sign and Tinel's sign testing of the median nerve was normal. The examiner noted a degree of incomplete paralysis of the radial and median nerves, but no complete paralysis. The lower radicular group was noted as normal. A February 2013 VA clinical note again shows the Veteran's report of constant numbness and pain in his right hand. The clinician did not note any other findings related to the right hand. In October 2015, private neurology records were added to the file. The neurologist noted the Veteran's report of weakness in the right hand. Following physical examination, the neurologist concluded that there is evidence of moderate to severe median neuropathy at the right wrist/carpal tunnel. Most recently, following the Board's remand, the RO obtained an opinion from a VA examiner based upon a review of the file in April 2017. This examiner confirmed that the in-service injury to the right hand, which led to the initial award of service connection in February 2005, included noted involvement of the median nerve. The examiner noted the later 2011 findings of "right median nerve neuropathy (carpal tunnel syndrome)" and concluded that this separate diagnosis of carpal tunnel syndrome is consistent with the initial service-connected diagnosis of right hand injury with finding of median nerve involvement. Thus, the examiner concluded that the current carpal tunnel findings represent a progression of the service connected condition. In September 2017, the examiner submitted an addendum report summarizing the Veteran's reported symptoms, including pain and numbness, as well as his diagnostic testing, and finding that his symptoms are most accurately measured as mild in severity involving the right median nerve. The examiner reviewed the record and saw no further involvement of the right radial nerve. Following this report, the RO awarded service connection for carpal tunnel syndrome with a noncompensable rating and noted its association with the right hand injury. In sum, throughout the pendency of this appeal, the Veteran has consistently reported ongoing pain, numbness and functional impairment including difficulty with grip and lifting. The Board recognizes these symptoms; however, at no time has the evidence shown the symptoms described as indicative of complete paralysis of the lower radicular group, radial nerve or median nerve, and no medical professional has indicated the presence of complete paralysis or symptoms that can be analogized to complete paralysis. For these reasons, the Board finds that the clinical manifestations of the Veteran's service-connected right hand injury do not warrant a rating in excess of 50 percent. The Board has considered whether there is any other basis for granting a higher rating for the right hand injury for any portion of the period on appeal, but has found none. Although the Board is sympathetic to the Veteran's claim, taking all of the relevant evidence of record into account, the preponderance of the evidence is against an increased rating. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The 50 percent rating for the service-connected right hand injury is restored, effective May 1, 2014; to this extent only, the appeal is allowed. A rating in excess of 50 percent for the service-connected right hand injury is denied. REMAND The Veteran claims he is unable to obtain and maintain substantially gainful employment due to service connected disabilities. The Veteran made this claim at the time of his April 2009 increased rating claim for the right hand injury. He reported having resigned from his job as a part-time security guard in March 2009 and he requested a 100 percent rating based upon unemployability. The Veteran again reported being unemployed due to his right hand disability in a September 2011 statement. His September 2011 VA Form 21-8940 listed his right hand injury as the cause for his inability to secure or follow substantially gainful employment. Thus, the TDIU claim is indeed before the Board as part and parcel to the right hand injury increased rating issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). Social Security Administration records added to the file in July 2014 include a Disability Determination finding the Veteran disabled as of June 2007 due to disorders of the back and obesity. The Veteran is service connected for degenerative arthritis of the spine. In October 2015, the Veteran's private physician submitted a statement consisting of two sentences, "[The Veteran] has been seen at the SDA Clinic on Oct 7, 2015, and is recommended [to] be placed on full disability at this time, due to service related injury to his back and right hand/wrist. Patient is having further neurologic testing done at this time." This physician did not provide any factual basis or rationale for this opinion. The same month records from a private neurologist were submitted, but did not include any comments related to employability. In October 2015, the Veteran again submitted a VA Form 21-8940 alleging his unemployability as due to his right hand disability alone. However, in January 2016, he submitted another, this time alleging his unemployability as due to his right hand injury and his now service-connected back disability. In March 2017, the Veteran's private physician again submitted a statement in support of his TDIU claim. This time, the physician again recommended the Veteran be placed on full disability due to service related injuries, including his heels, right hand, and back. The clinical records submitted with this statement include a notation that the Veteran reported to this physician that he could not work due to these disabilities and asked the physician to submit a statement indicating such. The physician's opinion did not include any clinical reasons or rationale for finding the Veteran is unemployable or for finding that the service connected right hand, heels, and back have caused unemployability. In addition to being service-connected for the right hand and back, the Veteran is also service connected for calluses on both heels. Thus, although the Veteran's TDIU claim initially was alleged to be due to his right hand alone, it has progressed to a claim for a TDIU based upon the combined impact of his service-connected right hand, back, and heels. The Veteran has not been afforded a single opinion addressing the collective impact of his service-connected disabilities on his employability. VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities in TDIU cases. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, following and taking note of the Federal Circuit's decision in Geib, the Court stated in Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), that the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the RO or the Board. Here, the Board finds that such an opinion is needed in order to determine how to proceed with the Veteran's TDIU claim. The Board finds that an opinion considering the combined impact of the Veteran's various service connected disabilities on his employability is warranted in this case. On remand, the RO is directed to undertake appropriate development to ascertain the impact of his service-connected disabilities, alone, on his activities of daily living and occupational ability. The Board also observes that the Veteran does not meet the percentage requirements for awarding TDIU on a schedular basis. 38 C.F.R. § 4.16(a) (2017). However, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage requirements of 38 C.F.R. § 4.16(a) should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). Thus, if it is found that the Veteran is unemployable due to any service connected disability or due to the combined impact, as alleged, then the matter should be referred to the Director, Compensation Service. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from a medical professional qualified to evaluate the impact of the Veteran's service-connected disabilities, when considered singularly and in the aggregate, on his ability to secure and maintain substantially gainful employment in light of his education and work history. A complete rationale should be given for all opinions and conclusions expressed. 2. After completing the above action, if it is found that the Veteran is unemployable due to any single service-connected disability or the combined impact of his service-connected disabilities, as alleged, then refer the TDIU claim to the Director, Compensation Service, for consideration of TDIU entitlement on an extra-schedular basis. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs