Citation Nr: 18129149 Decision Date: 08/23/18 Archive Date: 08/23/18 DOCKET NO. 15-04 254A DATE: August 23, 2018 ORDER Entitlement to an initial 10 percent rating, but no higher, for right median nerve laceration with residual right median nerve neuropathy (right wrist disability) prior to September 20, 2017 is granted, and an evaluation in excess of 30 percent thereafter is denied. FINDINGS OF FACT 1. Prior to September 20, 2017, the Veteran’s right wrist disability was manifested by weakness and painful motion. 2. From September 20, 2017, the Veteran’s right wrist disability was not manifested by severe incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating, but no higher, for a right wrist disability prior to September 20, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5215; 4.124a, DC 8515. 2. The criteria for entitlement to an initial rating in excess of 30 percent for a right wrist disability from September 20, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, DC 5215; 4.124a, DC 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1990 to July 1996. In a February 2015 VA Form 9, the Veteran requested a Board hearing. Although a Board hearing was scheduled in April 2018, the Veteran failed to appear for the hearing. The Veteran has not supplied good cause or any explanation for his failure to appear for the hearing, therefore the request for a Board hearing is deemed withdrawn. 38 C.F.R. §§ 20.702. 1. Entitlement to an initial compensable rating for a right wrist disability prior to September 20, 2017, and in excess of 30 percent thereafter In the June 2013 rating decision on appeal, the Veteran was granted service connection for right wrist laceration with reconstruction and scar, and assigned a noncompensable rating effective July 25, 2012 under DC 5215. In a March 2018 rating decision, the Veteran’s disability was recharacterized by the RO as right median nerve laceration with residual right median nerve neuropathy, and assigned a 30 percent rating under DC 8515, effective September 20, 2017. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In every instance where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. A. Prior to September 20, 2017 As discussed above, prior to September 20, 2017, the Veteran’s disability was rated as noncompensable under DC 5215. DC 5215 provides ratings specifically for the wrist joint. Under 38 C.F.R. § 4.71a, DC 5215, a 10 percent rating is assigned for limitation of dorsiflexion of the wrist less than 15 degrees. Alternatively, a 10 percent rating may be assigned when palmar flexion is limited in line with forearm. There is no differentiation in the ratings assigned for the major and minor hands under DC 5215. The Board notes that separate 10 percent ratings may not be assigned under DC 5215 for both limitation of dorsiflexion and limitation of palmar flexion. Normal range of motion of the wrist is 0 to 70 degrees for dorsiflexion, 0 to 80 degrees for palmar flexion, 0 to 45 degrees for ulnar deviation, and 0 to 20 percent for radial deviation. 38 C.F.R. § 4.71, PLATE I. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence supports the award of an initial 10 percent rating, but no higher, for the Veteran’s right wrist disability prior to September 20, 2017. The reasons follow. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to the minimum compensable rating of 10 percent for the service-connected right wrist disability based on the application of 38 C.F.R. § 4.59, due to findings of painful limitation of motion and weakness in the right wrist. For example, the Veteran was found to have limited dorsiflexion of the right wrist in the April 2013 VA examination. The examiner also noted that the Veteran’s right wrist exhibited pain upon palpation. VA treatment records also document pain and limited motion in the right wrist. In a February 2012 VA treatment record the Veteran complained of pain and weakness in his right wrist, in a June 2014 VA treatment record the Veteran reiterated his complaint of pain in the right wrist, and in an October 2016 VA treatment, the Veteran was referred to his primary care provider because of his inability to fully extend his right wrist. This evidence supports a finding of weakness and painful limitation of the wrist prior to September 20, 2017, which are the criteria necessary for a 10 percent rating under 38 C.F.R. § 4.59. The Board notes that a 10 percent evaluation is also the maximum available compensation available under DC 5215. The Veteran does not contend, and the evidence does not support, that the Veteran’s right wrist disability is manifested by ankylosis, and so an increased rating under DC 5214 is not warranted. Accordingly, the Veteran is not entitled to an increased rating in excess of 10 percent for either of these diagnostic codes. In the June 2018 Appellant’s Brief, the Veteran’s representative contends that the evidence of mild sensory numbness in the volar thumb, index, middle and half of the ring finger constitutes a higher rating for this part of the appeal period under DC 8515. Accordingly, the Board shall analyze whether a separate or an increased rating under this diagnostic code is appropriate for this part of the appeal period. The Board observes that the record reflects that the Veteran is right-handed. Pursuant to DC 8515 for the dominant (right) upper extremity, a 10 percent evaluation is warranted when there is mild incomplete paralysis of the median nerve. A 30 percent evaluation is warranted when there is moderate incomplete paralysis. A 50 percent rating is provided for severe incomplete paralysis. A maximum 70 percent evaluation is warranted for complete paralysis of the median nerve. 38 C.F.R. § 4.124a, DC 8515. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. However, in the April 2013 VA examination for peripheral nerve conditions, the examiner specifically found that the Veteran’s median nerve was normal, and was not manifested by incomplete paralysis to any degree. The affected fingers were characterized as being affected by only “mild numbness.” The Board also notes a December 2016 VA treatment record indicates that there is electrodiagnostic evidence of a mild sensorimotor, median neuropathy at the right wrist consistent with carpal tunnel syndrome. Although the examiner stated that the Veteran’s results were consistent with carpal tunnel syndrome, the record does not support that the Veteran was diagnosed with carpal tunnel syndrome at any time. Accordingly, the Board find’s that the examiner’s reference to carpal tunnel syndrome was a preliminary assessment, and did not indicate a final diagnosis. The Board also finds that these results merely provide the diagnostic basis for the mild numbness of the Veteran’s fingers reported in the April 2013 VA examination. Accordingly, this additional evidence does not support a finding of either mild or moderate incomplete paralysis of the median nerve in this part of the appeal period. Accordingly, the Board finds that mild numbness of finger sensation does not constitute the necessary lost or impaired function necessary for a separate 10 percent rating under DC 8515, or an increased 30 percent rating under DC 8515. The examiner’s finding of a normal median nerve without any degree of incomplete paralysis weighs against a finding of either mild or moderate incomplete paralysis of the median nerve, which are the respective criteria needed for either a 10 or a 30 percent rating under DC 8515. 38 C.F.R. § 4.124a. Accordingly, because the Veteran’s right wrist disability is not manifested by paralysis of the median nerve, even when the Veteran’s mild numbness is taken into account, neither an increased nor a separate rating under DC 8515 is warranted. In sum, the Veteran is entitled to at least the minimum compensable rating of 10 percent for the service-connected right wrist disability based on the application of 38 C.F.R. § 4.59 as an initial rating, however, as the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the service-connected right wrist disability for this part of the appeal period, the benefit of the doubt doctrine is not for application for this evaluation, and the Veteran’s claim is denied to this extent. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. From September 20, 2017 As mentioned above, the record reflects the Veteran is right-handed. Pursuant to DC 8515 for the dominant (right) upper extremity, a 30 percent evaluation is warranted when there is moderate incomplete paralysis. A 50 percent rating is provided for severe incomplete paralysis. A maximum 70 percent evaluation is warranted for complete paralysis of the median nerve. 38 C.F.R. § 4.124a, DC 8515. Complete paralysis of the median nerve contemplates the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscle 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; and pain with trophic disturbances. The Board notes, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The words “slight,” “moderate,” and “severe” as used in the various DCs 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 evidence indicates that the Veteran’s right wrist disability is manifested with pain and limitation of motion, but does not result severe incomplete paralysis, to warrant a 50 percent rating. At worst, the Veteran’s right wrist disability is manifested by moderate incomplete paralysis of the median nerve, as found in the October 2017 VA examination. The Veteran’s record does not reflect any additional VA treatment or other private medical records for this part of the appeal period. The Board has considered the effects of the Veteran’s symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of severe incomplete paralysis, which is the criteria needed for a 50 percent rating. Examination results throughout the appeal period show that the Veteran had muscle strength characterized as 4/5 for wrist extension and flexion, indicating active movement against some resistance and decreased sensation in the right-hand fingers. Taking into account the evidence of record indicating the Veteran’s regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in severe incomplete paralysis, which would be required for a finding that the Veteran was entitled to a 50 percent disability rating. The Board has considered whether a separate rating under DC 5215 is warranted for this part of the appeal period. VA’s anti-pyramiding regulation, 38 C.F.R. § 4.14, states that the evaluation of the “same disability” or the “same manifestation” under different diagnoses is to be avoided. Stated another way, for certain disabilities, a veteran can receive separate ratings unless the conditions constitute the “same disability” or the “same manifestation”. It is possible for a veteran to have separate and distinct manifestations attributable to two different disability ratings, and, in such case, the veteran should be compensated under different diagnoses. Similarly, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. The rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology because this would result in overcompensation for actual impairment of earning capacity. Although in some cases arguments may be made for rating a disability under two or more DCs, the Board must weigh the evidence and make an informed choice as to which provides the most appropriate rating method but the same disability may not be rated under two or more DCs. Therefore, 38 C.F.R. § 4.14 prohibits the evaluation of the same disability under various diagnoses. Here, in the October 2017 VA examination, the examiner specifically stated that the Veteran’s right median nerve laceration with residual right median nerve neuropathy is a progression of his service-connected right wrist laceration with reconstruction and scar. Accordingly, the Board finds that since Veteran’s current diagnosis is a medical progression of his previous diagnosis, the Veteran’s disability remains the same as before, and the Veteran may not be compensated twice for these separate diagnoses. The Board has also considered whether the Veteran is entitled to a higher rating under DC 5215. However, the highest available rating available under DC 5215 is 10 percent. Since the Veteran is already being compensated at 30 percent under DC 8515, he would not benefit from changing the DC for this part of the appeal period. In sum, the evidence does not show that a disability rating in excess of 30 percent for a right wrist disability is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel