Citation Nr: 1816668 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 12-05 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for posttraumatic sensory neuropathy left upper extremity prior to December 17, 2014. 2. Entitlement to an evaluation in excess of 20 percent for posttraumatic sensory neuropathy left upper extremity on or after December 17, 2014. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served in active duty in the U.S. Army from September 1968 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. The Veteran has also perfected an appeal of the issue of entitlement to a total disability rating for individual unemployability (TDIU); however, this issue has not been certified to the Board and is not ready for Board consideration. Thus, it will not be addressed in this decision. FINDINGS OF FACT 1. Prior to December 17, 2014, the Veteran's posttraumatic sensory neuropathy left upper extremity has not been manifested by moderate incomplete paralysis of the median nerve. 2. Prior to December 17, 2014, the Veteran's posttraumatic sensory neuropathy left upper extremity has not been manifested by severe incomplete paralysis of the median nerve. 3. On or after December 17, 2014, the Veteran's posttraumatic sensory neuropathy left upper extremity has not been manifested by severe incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. Prior to December 17, 2014, the criteria for a disability rating in excess of 10 percent for posttraumatic sensory neuropathy left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515. 2. On or after December 17, 2014, the criteria for a disability rating in excess of 20 percent for posttraumatic sensory neuropathy left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C.A. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary in order for a rating to accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). "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. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran's left upper extremity neuropathy is rated under Diagnostic Code 8515, 38 C.F.R. § 4.124a, for paralysis of the median nerve. This diagnostic code provides ratings for both the major and the minor upper extremity. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. In this case, the record reflects that the Veteran is dominant in the right hand. See November 2017 VA Examination. Therefore, the Board finds that the Veteran's left upper extremity is the minor, i.e., non-dominant side. When there is mild incomplete paralysis of the median nerve, Diagnostic Code 8515 allows for a 10 percent rating for both the major and minor upper extremity. Moderate incomplete paralysis of the median nerve warrants a 30 percent rating in the major upper extremity, and a 20 percent rating in the minor upper extremity. Severe incomplete paralysis of the median nerve is awarded a 50 percent rating for the major upper extremity, and a 40 percent rating for the minor upper extremity. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and effective, 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 the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances; is granted a 70 percent rating for the major upper extremity, and a 60 percent rating for the minor upper extremity. 38 C.F.R. § 4.124a. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of 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 evidence as it relates to the Veteran's posttraumatic sensory neuropathy left upper extremity after the April 19, 2010 effective date this service-connected condition includes VA treatment records, Social Security Administration (SSA) records, and the Veteran's lay statements. With respect to the Veteran's lay statements, in his SSA records, he indicated his left hand was numb and unable to grip. With respect to the relevant medical evidence, in a May 2010 neurology consult at the Houston VA Medical Center (MC), an EMG of the left arm revealed chronic reduction of the recruitment patterns more so in the deltoid, biceps, BR and triceps muscles. The EMG also revealed a mild delay of the left median nerve motor and sensory distal latencies. There was normal left ulnar nerve motor and sensory responses. The findings of the EMG indicated a chronic moderate left C6 radiculopathy. There was also a left sensory and motor CTS. According to the Veteran's SSA Records, a May 2010 consultation was ordered by the Department of Assistive and Rehabilitative Services. During this consultation, the Veteran reported current residuals of numbness over the thumb and the index finger of the left hand. He also reported discomfort at the left wrist with decreased function secondary to discomfort. The examiner reviewed the May 2010 EMG performed at the Houston VAMC. There was chronic reduced signal noted in the deltoid biceps and brachioradialis as well as triceps distribution. The examiner noted there was mild delay noted in the left median nerve and motor and sensory distal latency. Normal left ulnar distal latencies were noted. There was noted chronic moderate left C6 radiculopathy and left sensory motor carpal tunnel syndrome. Based on these findings, the examiner recommended that the Veteran be evaluated as a potential operative candidate for carpal tunnel release, disentrapment of the median nerve. The examiner also recommended the Veteran should have application of a left wrist splint device in the position of neutral to be worn as needed throughout the day for relief of pain and numbness of the left wrist and for modest improvement in function pending more specialized evaluation as to his candidacy for surgery. In an August 2010 encounter at the Houston VAMC, the Veteran indicated a pain level of 7 in his left wrist. The examiner noted that the current pain level was unacceptable to the Veteran as his highest comfort level was a 3. At the time of this examination, he was receiving medical treatment for chronic pain. In an August 2010 neurology compensation and pension (C&P) examination, the Veteran indicated he started feeling numbness in his left hand in 2008. The onset was chronic and gradual. According to the Veteran, the wound healed well, but he continued to experience an "electric shock like feeling radiating to the dorsum of the left index finger upon pressing the scar." He began noticing numbness on the dorsum of the left hand, localized to the proximal portion of the dorsum of the left thumb, index finger and the first web space. He stated the area felt tight, especially while griping. There was no focal weakness. The Veteran indicated that since the onset of the numbness in his left hand, the numbness has gotten progressively worse. He had left hand stiffness, numbness, and pain in the 1st web space and the dorsum of the index finger and thumb. There was pain upon pressing the scar. A sensory examination of the left upper extremity revealed normal vibration, decreased pain/pinprick, normal position sense, and decreased light touch. There was no dysesthesias, gait abnormality, imbalance or tremor, evidence of fasciculation, or function of any joint affected by the nerve disorder. The examiner indicated a small well healed scar at the apex of the first web space on the dorsum of the left hand. There was nerve dysfunction, neuritis, and neuralgia. In this examination, the Veteran was diagnosed with post traumatic left superficial radial sensory neuropathy - incomplete indicated by numbness, pain, and stiffness of the left hand. The examiner indicated that the Veteran's post traumatic left superficial radial sensory neuropathy did not affect his occupation or usual daily activities. In a November 2010 primary care follow-up at the Richmond Community-Based Outpatient Clinic (CBOC), the Veteran denied any weakness, numbness or tingling. There was no indication of dizziness or difficulty with closing the left hand. The EMG showed left C6 radiculopathy. In a January 2011 visit at the Hillcroft Medical Clinic Association, an examination of the hands showed moderately advanced arthritic changes in the distal interphalangeal joint of both hands. The Veteran's left wrist was intact without evidence of acute lesion or arthritic change. In a July 2013 visit at the Richmond CBOC, the Veteran complained of numbness and tingling in the left upper arm. In a December 2014 VA examination of the Veteran's neck (cervical spine) conditions, the examiner indicated he continued to experience left hand numbness and noted right hand tingling over the last months. He has weakness in his arms. His test for sensation to light touch (dermatomes) was normal for his shoulder area, inner/outer forearm, and hand/fingers. The Veteran was not shown to have radicular pain or any other signs or symptoms due to radiculopathy. In a December 2014 VA examination of the Veteran's wrist, the Veteran continued to be diagnosed with post traumatic sensory neuropathy, left upper extremity associated with shrapnel wound left hand. The examiner indicated the Veteran had a left hand shrapnel wound between carpal bones. He had minimal tenderness in the wound area around his thumb and second index. He had weakness in the use of his hand but no wrist pain or stiffness. His range of motion in his left wrist was normal. There was no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue. With respect to repetitive use, the Veteran was able to perform repetitive use testing with at least three repetitions with no loss of function or range of motion. There was no indication that he experienced pain, weakness, fatigability or incoordination that would significantly limit his functional ability with repeated use over a period of time or functional ability with flare-ups. With respect to muscle testing, the Veteran had normal strength in his left wrist; there was no reduction in muscle strength. Imaging studies of his left hand were also performed during this examination which revealed no acute fractures or dislocations. The soft tissues were unremarkable. In December 2014, a Peripheral Nerves Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) examination was also conducted. During this examination, the Veteran was diagnosed with diabetic neuropathy and post traumatic sensory neuropathy, left upper extremity associated with shrapnel wound left hand. The Veteran had left hand shrapnel wound between carpal bones. He had minimal tenderness in the wound area around his thumb and second index. He had weakness in use of hand but no wrist pain or stiffness. The Veteran was not noted to experience constant pain but experienced mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his left upper extremity. Muscle strength testing in his left upper extremities exhibited normal strength except for where he was noted to have active movement against some resistance in his left grip. Sensation testing for light touch results in his upper extremities was normal except for his left inner/outer forearm which exhibited decreased sensation. With respect to the tests performed for median nerve evaluation, the Veteran's Tinel's sign test for his left side was positive but the Phalen's sign test was negative. Results were normal for his severity evaluation for upper extremity nerves and radicular groups, including the radial nerve, median nerve, ulnar nerve, circumflex nerve, upper radicular group, middle radicular group, and lower radicular group. His EMG results dated May 2010 for his left upper extremity were abnormal as it noted findings of a chronic moderate left C6 radiculopathy and left sensory and motor CTS. In the December 2014 Diabetic Sensory-Motor Peripheral Neuropathy VA examination, in addition to the testing done for the Veteran's peripheral nerves conditions, the examiner noted that his position sense in his left upper extremity was decreased. In February 2016, at the Houston VA Medical Center (VAMC), the Veteran complained of experiencing pain in his arms and hands associated with numbness and tingling. The Veteran noted that the pain occurs most frequently throughout the day, interfering with fine motor tasks such as writing, holding a pen, and hammering nails. In November 2017, the Veteran underwent a VA examination for his peripheral nerves conditions. The Veteran was diagnosed with neuropathy in the left upper extremity. The Veteran reported that he had intermittent pain that is worsening in his left hand and also reports numbness and tingling. The examiner noted no constant pain or paresthesias in his left upper extremity. However, the examiner indicated there was mild intermittent pain and moderate numbness in the Veteran's left upper extremity. The neurological examination shows that the Veteran had normal strength (5 out of 5) in his left elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch (thumb to index finger), knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion. There was active movement against some resistance (4 out of 5) in his left elbow flexion, left elbow extension, left wrist flexion, left wrist extension, and pinch. The Veteran's reflex exam was normal. Light touch testing produced normal results in the left shoulder area and left hand and fingers. The results were decreased in the left inner/outer forearm. The examiner noted that the Veteran did not have any trophic changes attributable to peripheral neuropathy. With respect to the tests performed for median nerve evaluation, the Veteran's Phalen's sign test and Tinel's sign test for his left side was positive. Based on the symptoms and findings in the Veteran's November 2017 examination, the examiner provided a severity evaluation for the Veteran's upper extremity nerves and radicular groups. With respect to the Veteran's radial nerve/muscolospiral nerve was affected, his left side was normal and did not show incomplete or complete paralysis. With respect to the median nerve, his left side showed moderate incomplete paralysis. The ulnar nerve, musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper radicular group, middle radicular group, and lower radicular group were normal. With respect to the Veteran's fine and gross manipulation of his hands, the examiner indicated that the Veteran had difficulty with prolonged typing and writing. Based on the evidence above, the Board does not find that a rating higher than 10 percent is appropriate for the Veteran's for posttraumatic sensory neuropathy left upper extremity prior to December 17, 2014. For this period, there is no indication that his symptoms were more than mild. A May 2010 neurology consultation at the Houston VAMC indicated that the Veteran was diagnosed with incomplete paralysis. However, the consultation also classified the incomplete paralysis as a mild delay of the left median nerve. The Board does not find that this examination or the other evidence of record from this period more nearly approximates moderate incomplete paralysis of the median nerve. Therefore, the criteria for an evaluation higher than 10 percent under Diagnostic Code 8515 have not been met prior to December 17, 2014. 38 C.F.R. § 4.124a. In addition, based on the evidence above, the Board does not find that a rating higher than 20 percent is appropriate for the Veteran's for posttraumatic sensory neuropathy left upper extremity on or after December 17, 2014. The Veteran's latest examination in November 2017 confirmed the Veteran's diagnosis of moderate incomplete paralysis of the median nerve. The Board does not find that this examination or the other evidence of record from this period more nearly approximates severe incomplete paralysis of the median nerve. Therefore, the criteria for an evaluation higher than 20 percent under Diagnostic Code 8515 have not been met from December 17, 2014. 38 C.F.R. § 4.124a. ORDER Entitlement to an evaluation in excess of 10 percent for posttraumatic sensory neuropathy left upper extremity prior to December 17, 2014 is denied. Entitlement to an evaluation in excess of 20 percent for status post sensory neuropathy left upper extremity on or after December 17, 2014 is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs