Citation Nr: 20003295 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 09-05 852 DATE: January 14, 2020 ORDER Entitlement to a rating in excess of 10 percent for service-connected post-operative residuals of cubital/carpal tunnel syndrome (CTS) of the right upper extremity, for substitution purposes, is granted. Entitlement to service connection for residuals of right middle finger amputation, claimed as secondary to service-connected post-operative residuals of cubital/CTS of right upper extremity, for substitution purposes is granted. REMANDED Entitlement to service connection for torn right triceps muscle, claimed as secondary to service-connected post-operative residuals of cubital/CTS of right upper extremity, for substitution purposes is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected post-operative residuals of cubital/CTS of the right upper extremity resulted in severe incomplete paralysis of the median nerve with muscular atrophy, impaired reflexes, pain and numbness. 2. The Veteran’s diagnosed residuals of amputation of the right middle finger were as likely as not proximately caused or aggravated by his service-connected post-operative residuals of cubital/CTS of the right upper extremity. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant’s favor, the criteria for a schedular rating of 50 percent rating for post-operative residuals of cubital/CTS of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a Note 1, 4.124a, Diagnostic Code 8515. 2. Resolving all doubt in the appellant’s favor, the criteria for entitlement to service connection for residuals of amputation of right middle finger are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to April 1985. He died in December 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2012, the Board dismissed the appeal due to the death of the Veteran and informed the appellant that she could file a request to be substituted as the appellant for purposes of the processing the claims to completion. In May 2012, the RO recognized the appellant as a valid substitute claimant in place of the Veteran for the issues on appeal. Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending on the date of the Veteran’s death. In a May 2018 Board decision, the claims were remanded for additional evidentiary development. A review of the record reflects substantial compliance with the Board’s Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in September 2019. The VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a rating in excess of 10 percent for service-connected post-operative residuals of cubital/CTS of the right upper extremity. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. Historically, the Veteran underwent right ulnar nerve transposition surgery during his active duty service in September 1984. Medical Evaluation Board proceedings dated from January 1985 documented right ulnar nerve compression syndrome, status-post ulnar nerve transposition with residual neuralgia. In a May 1985 rating decision, the Veteran was service-connected for neuralgia of the right ulnar nerve; a 10 percent rating was assigned under Diagnostic Code (DC) 8516 from April 23, 1985. A December 1999 rating decision, which confirmed and continued the assigned 10 percent rating, rephrased the service-connected disability as ‘post-operative right cubital/CTS” and determined that the Veteran’s disability should be evaluated under DC 8515. In June 2004, the Veteran filed a claim of entitlement to a rating in excess of 10 percent for the service-connected post-operative residuals of cubital/CTS of the right upper extremity. The Veteran’s claim was denied in a February 2005 rating decision. After the submission of additional evidence and argument within a year, a May 2006 rating decision confirmed the assigned 10 percent rating. The Veteran again submitted additional evidence and argument within a year of the May 2006 rating decision, and a November 2007 rating decision was issued, which again confirmed and continued the assigned 10 percent rating. The Veteran filed a notice of disagreement (NOD) in November 2007 and this appeal follows. At the outset, the Board notes that, throughout the appeal period, examination reports and treatment records have variously recorded involvement of the median and ulnar nerves of the right upper extremity. Incomplete paralysis of the median nerve is rated under DC 8515. Although various nerves appear to be affected, they all result in the same manifestations of impairment, which are contemplated by the ratings assigned. The Veteran cannot be compensated twice for the same symptomatology. See 38 U.S.C. § 1155; 38 C.F.R. § 4.14. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Words such as “mild,” “moderate,” “severe” and “pronounced” 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. Under Diagnostic Codes 8515 and 8516, a 10 percent rating is warranted for mild incomplete paralysis of the ulnar or median nerve of either the major or minor side. A 30 percent rating is warranted for moderate incomplete paralysis of the ulnar or median nerve of the major side. With severe symptoms affecting the major side, a 50 percent rating is warranted if the median nerve is involved, and a 40 percent rating is warranted if the ulnar nerve is involved. With complete paralysis affecting the major side, a 70 percent rating is warranted if the median nerve is involved, and a 60 percent rating is warranted if the ulnar nerve is involved. 38 C.F.R. § 4.124a, Diagnostic Codes 8515-8516. For the reasons set forth below, the Board finds that the criteria for a rating of 50 percent, but no higher, for the service-connected post-operative residuals of cubital/CTS of the right upper extremity is warranted throughout the appeal period. In a March 2004 letter, Dr. D.T. indicated that sensory testing revealed the Veteran had a diffuse decrease in pinprick sensation throughout his right arm. Dr. D.T. stated that there was decreased proprioception in the right hand. Motor testing revealed “moderate weakness distally in the right upper extremity, particularly in the intrinsic muscles but 4+ proximally.” See the letter of Dr. D.T. dated March 2004. The Veteran’s reflexes were noted to be slightly exaggerated on the right. In his June 2004 claim for an increased rating, the Veteran asserted that he lost all his fine motor skills in his right arm and has no feeling in his right arm/hand. VA treatment records dated in October 2004 noted that the Veteran had a total of 14 surgeries on his right upper extremity. The VA treatment provider stated that the Veteran “[h]as lost all feeling in his right upper extremity – recently burned his fingertips.” The Veteran was also noted to have lost the ability to write with his right hand. See the VA treatment records dated October 2014. The Veteran was afforded a VA examination in January 2005 at which time the examiner noted that the Veteran’s right upper extremity strength was difficult to evaluate due to a large bandage on his right hand. Muscle strength of the deltoids and triceps were noted to be within normal limits. Reflexes were absent at the biceps and triceps. The examiner noted that the Veteran had undergone amputation of his right middle finger three weeks prior. The examiner stated that sensation of the right upper extremity “is preserved but he has areflexic uppers, modest weakness in the forearm, and flexion of the remaining fingers on the right.” It was noted that the Veteran was right-handed. In a January 2006 statement, a medical professional stated that the Veteran has had a total of 14 surgeries on his right upper extremity including rotator cuff repair, carpal tunnel release, ulnar nerve transposition (x2), biceps repair, and triceps repair. He has also had additional surgery for syringomyelia and amputation of the right middle finger. The medical professional stated that the Veteran “has had significant impairment of right upper extremity and decreased sensation of right arm and upper extremity. He has lost the ability to write and function with his right hand.” See the statement dated January 2006. The Veteran was afforded a VA examination in March 2006 at which time the examiner noted the Veteran’s report of constant pain throughout the right upper extremity. He indicated that any kind of use aggravates his right upper extremity pain. The Veteran reported problems with bending and using the elbow and fingers of the right hand. He stated that he has experienced weakness of the right hand for several years. The examiner noted the Veteran’s report that his hand fatigues easily, he has decreased strength, and is unable to hold anything. Upon physical examination, the examiner indicated that the Veteran exhibited full range of motion of the right elbow with flexion to 130 degrees. There was significant weakness of the right biceps and triceps muscles. The Veteran complained of decreased perception of light touch; however, the examiner noted that the Veteran “is able to perceive light touch across the entirety of the right upper extremity from the shoulder down to the hand.” The examiner noted positive Phalen’s sign with hyperflexion of the right wrist. Grip strength was reduced by half. The examiner additionally noted that the Veteran “lacks about 1 cm. of touching the tip of the right index finger to the palmar crease.” There was no change with repetitive motion. The examiner confirmed diagnoses of right cubital tunnel syndrome, status-post cubital tunnel release with residuals, right CTS status-post surgery(x4) with residuals, and amputation of the right middle finger with residuals. Private treatment records dated in October 2006 indicated that the Veteran had at least 50 percent decreased strength over his biceps muscle on the right. Magnetic resonance imaging (MRI) revealed a biceps tendon rupture distally of the right elbow with ulnar collateral ligament and partial tear and partial tear of the common flexor origin over the medial condyle of the right elbow.” The Veteran was afforded a VA examination in October 2007 at which time the examiner noted that the strength of the deltoids, triceps, biceps, and other muscles of the right upper extremity were normal. There was diffuse areflexia at the bicep and triceps. The Veteran was confirmed to be right-handed. VA treatment records dated in July 2008 noted that the Veteran had paresthesias of the right upper extremity with increased pain. In his February 2009 VA Form 9, the Veteran reported that he has “very limited range of motion in my right arm and I have no fine motor skills. I have chronic and severe spasm and pain in my right arm with severe nerve damage. I have constant swelling and have lost all function in my right arm." Based on the evidence of record, the most pertinent of which is discussed above, the Board finds that the evidence of record more closely approximates severe incomplete paralysis of the median nerve in the right upper extremity throughout the rating period on appeal. 38 C.F.R. § 4.7. In this regard, the evidence demonstrates that the symptomatology associated with the Veteran’s post-operative residuals of cubital/CTS of the right upper extremity is characterized by pain, weakness and numbness, as well as sensory and reflex impairment. There was also evidence of decreased muscle strength and spasm in the right upper extremity. In light of the foregoing, the Board concludes that the Veteran’s post-operative residuals of cubital/CTS of the right upper extremity more closely approximates a 50 percent disability rating throughout the appeal period. The Board also finds that the evidence does not more nearly approximate complete paralysis of the right upper extremity, and the evidence was not approximately evenly balanced on this point at any time during the appeal period. There is no documentation that the Veteran’s right hand was inclined to the ulnar side, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the Veteran’s hand, incomplete and defective pronation, inability to flex or extend the fingers (to include feeble movement), defective opposition and abduction of the thumb at right angles to the palm, weakened flexion of the wrist, or trophic changes of the right upper extremity. Moreover, no examiner or treatment provider has indicated that the Veteran experiences complete paralysis of the median or ulnar nerves. As such, it cannot be said that the nature and severity of the abnormalities more nearly approximated complete paralysis in the right upper extremity, or that the evidence is in relative equipoise on this point. Thus, a rating of 50 percent, but no higher, is warranted for post-operative residuals of cubital/CTS of the right upper extremity throughout the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected post-operative residuals of cubital/CTS of the right upper extremity, the evidence shows no distinct periods of time during the appeal period, when his disability varied to such an extent that a higher rating would be warranted. Hart, supra. 2. Entitlement to service connection for residuals of right middle finger amputation, claimed as secondary to service-connected post-operative residuals of cubital/CTS of right upper extremity. The Veteran asserted that his amputation of the right middle finger was causally related to his service-connected post-operative residuals of cubital/CTS of the right upper extremity. See, e.g., the Veteran’s NOD dated November 2007. The Board has reviewed the record and concludes that the evidence supports an award of service connection for the diagnosed residuals of amputation of the right middle finger. VA treatment records dated in July 2003 noted that the Veteran has a tight sensation in his right arm with numbness in his right hand. He reported that he cannot use a pot holder, so he uses a cloth to hold hot items when cooking. See the VA treatment records dated July 2003. The Veteran’s treatment provider noted that the Veteran had several open sores and dressings from burning his right hand. In a March 2004 letter, Dr. D.T. stated that the Veteran has burned himself when cooking due to his right upper extremity symptoms. VA treatment records dated in December 2004 noted that the Veteran presented with progressive swelling and erythema of the right hand. His treatment provider stated that the Veteran had a chronic wound of the right-hand for many months and now has purulent material draining from his hand. In January 2005, the Veteran was noted to have injured his right hand and developed a subsequent abscess. He underwent amputation of the right middle finger in January 2005. The physician who conducted the Veteran’s surgery noted that the Veteran’s admission was not related to a service-connected condition. No explanation or rationale was provided for this conclusion. In a June 2005 letter, Dr. I.R. indicated that she provides continuing treatment for the Veteran at the Durham VA Medical Center (VAMC) and Hillandale Road VA Clinic. She stated that, due to his service-connected right upper extremity disability, the Veteran “has had altered sensation of his right upper extremity. I believe this resulted in his most recent and unfortunate accident where he burned his right middle finger on hot dish.” Dr. I.R. continued, “I believe the severity of the burn he received was related [to] altered sensation from the previous injury. Furthermore, this injury was complicated by infection and teno-synovitis which resulted in amputation of his right middle digit.” In a March 2006 VA examination report, the examiner indicated that he could not connect the amputation of the Veteran’s right middle finger with his service-connected cubital/CTS of the right upper extremity without resorting to speculation. Pursuant to the May 2018 Board Remand, a VA medical opinion was obtained in May 2019 at which time the examiner indicated that the amputation of the Veteran’s right middle finger was not proximately caused or aggravated by his service-connected post-operative residuals of cubital/CTS of the right upper extremity. The examiner stated, “[t]he two conditions are not medically related . . . The medical literature does not support a medical relationship.” The examiner further indicated, “[n]otes from the surgeons opined that this was unrelated to his previous right cubital tunnel surgery [more than] 20 years prior which was also echoed in a medical opinion by a VA examiner on March 30, 2006.” Critically, neither the March 2006 nor the May 2019 VA medical opinions addressed the medical evidence of record, which clearly shows that the Veteran sustained repeated injuries of his right hand and fingers as a result of impairment caused by his service-connected post-operative residuals of cubital/CTS of the right upper extremity. Accordingly, these VA opinions are of diminished probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is “suitably qualified and sufficiently informed”). Moreover, the conclusions set forth in the March 2006 and May 2016 VA medical opinions are clearly contradicted by the findings of the Veteran’s treating VA physician who indicated that the Veteran’s right middle finger amputation was proximately due to his service-connected post-operative residuals of cubital/CTS of the right upper extremity. See the letter from Dr. I.R. dated June 2005. Overall, the Board finds that the record is in equipoise as to the award of service connection for amputation of the right finger. The evidence is at least evenly balanced as to whether the Veteran’s right middle finger amputation with residuals was caused or aggravated his service-connected post-operative residuals of cubital/CTS of the right upper extremity. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of right finger amputation is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for torn right triceps muscle, claimed as secondary to service-connected post-operative residuals of cubital/CTS of right upper extremity is remanded. The Veteran asserted entitlement to service connection for torn right triceps muscles, which he contended was caused or aggravated by his service-connected post-operative residuals of cubital/CTS of the right upper extremity. See the Veteran’s claim dated September 2005. Pursuant to the May 2018 Board Remand, a May 2019 VA medical opinion was obtained in which the examiner indicated that the claimed torn right triceps tendon was less likely than not proximately due to or the result of the Veteran’s service-connected post-operative residuals of cubital/CTS of the right upper extremity. The examiner provided the following rationale: “[t]here is no objective evidence contained within the [claims]-file which demonstrates that this injury as caused by service-connected residuals of post-operative right cubital/CTS.” The examiner provided the same rationale as to the question of aggravation. Critically, the terse rationale provided by the May 2019 VA examiner is wholly inadequate to support the conclusion rendered and the opinion is therefore of no probative value. Accordingly, this matter must be remanded in order to obtain an adequate VA medical opinion as the question of whether the diagnosed torn right triceps tendon was caused or aggravated by the Veteran’s service-connected post-operative residuals of cubital/CTS of the right upper extremity. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed torn right triceps muscle. The examiner is requested to review the relevant evidence of record, including service treatment records, VA, and private treatment records. The examiner should then provide an opinion as to: (a). Whether it is at least as likely as not that the diagnosed torn right triceps muscle was caused by the Veteran’s service-connected post-operative residuals of cubital/CTS of right upper extremity? (b). If not, the examiner should provide an opinion as to whether it is at least as likely as not that the diagnosed torn right triceps muscle was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the service-connected post-operative residuals of cubital/CTS of right upper extremity? If the Veteran’s torn right triceps muscle was aggravated by his service-connected post-operative residuals of cubital/CTS of right upper extremity, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s documented statements as to the nature, severity, and frequency of his observable symptoms over time. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.