Citation Nr: 20021953 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 20-05 821 DATE: March 30, 2020 ORDER Entitlement to a 40 percent rating, effective from July 9, 2013 to April 28, 2016, for the right hand (dominant) ulnar nerve injury is granted. Entitlement to a 40 percent rating, effective from June 1, 2016, for the right hand (dominant) ulnar nerve injury is granted. FINDINGS OF FACT 1. On February 5, 2014, the Regional Office (RO) received the Veteran’s claim for an increased rating, which it did not act upon; upon review of the evidence in a light most favorable to the Veteran, the evidence shows on July 9, 2013, it became factually ascertainable that the Veteran's right hand ulnar nerve injury increased (within one year prior to the date of the February 2014 claim). 2. Resolving all reasonable doubt in favor of the Veteran, his right hand ulnar nerve injury is more appropriately characterized as severe incomplete paralysis of the ulnar nerve at least for the periods from July 9, 2013 to April 28, 2016, and from June 1, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent rating for the right hand ulnar nerve injury, effective July 9, 2013 to April 29, 2016, have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. § § 3.102, 3.400, 4.7, 4.124a, Diagnostic Code 8516 (2019). 2. The criteria for entitlement to a 40 percent evaluation for right hand ulnar nerve injury, effective from June 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.7, 4.124a, Diagnostic Code (DC) 8516 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted a temporary total (100 percent) evaluation percent effective April 29, 2016, based on surgical or other treatment necessitating convalescence, and assigned a 30 percent evaluation for right hand ulnar nerve injury (dominant), effective as of June 1, 2016. The Veteran submitted a Notice of Disagreement (NOD) in April 2017, specifically disagreeing with the evaluation of the right hand disability as well as the effective date of the grant of a 30 percent rating. The Veteran perfected his appeal in December 2019. 1. Entitlement to an effective date earlier than June 1, 2016, for an increased rating of 30 percent rating for right hand (dominant) ulnar nerve injury. 2. Entitlement to an increased rating in excess of 30 percent for right hand (dominant) ulnar nerve injury (excluding a period when a temporary total rating was in effect). The Veteran asserts that he is entitled to an earlier effective date for an increased rating for his right hand disability. By way of history, service connection for right hand ulnar nerve injury was granted in an October 2012 rating decision, which assigned a 10 percent rating effective from June 14, 2012. In November 2012, the Veteran disagreed with the effective date assigned for the award of service connection; he did not, however, express disagreement with the 10 percent disability rating or otherwise request an increased rating. See November 2012 Statement in Support of Claim (“This is my NOD for: 1. Effective date of claim.”). Indeed, the November 2012 correspondence constituted a NOD only as to the assigned effective date of service connection. Cf. Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998) (holding that a NOD that expressed disagreement only as to the assigned effective date did not constitute a NOD as to the evaluation itself); Jarvis v. West, 12 Vet. App. 559 (1999) (NOD that disagreed only with effective date did not constitute a NOD as to disability rating). As such, the October 2012 rating decision became final as to the initial rating assigned for the right hand ulnar nerve injury. By a June 2015 rating decision, the RO granted an earlier effective date of June 14, 2011, for the award of service connection for a right hand ulnar nerve injury. The Veteran did not disagree with or otherwise appeal this determination. On February 5, 2014, the Veteran submitted a VA Form 21-526b (Veteran’s Supplemental Claim for Compensation) and indicated that he wished to file a claim for an increased rating for his right hand ulnar nerve injury. On May 2, 2016, the Veteran submitted a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) and again requested an increased rating for his right hand disability, as well as total temporary rating based on surgical treatment necessitating convalescence. In the June 2016 rating decision on appeal, the RO granted a temporary total (100 percent) rating, effective from April 29, 2016 (i.e., the date the Veteran underwent surgery for his right hand disability) to May 31, 2016. The RO also assigned a 30 percent rating beginning June 1, 2016. In his April 2017 NOD, the Veteran expressed disagreement with the effective date of the award, as well as the 30 percent evaluation of the disability. He did not appeal any aspect of the temporary total rating under 38 C.F.R. § 4.30. Under 38 U.S.C. § 5110(a), the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (b)(3) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Thus, “the plain language of [section] 5110(b)(3) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125, 126 (1997). In consideration of the foregoing procedural history, the Board finds that the Veteran submitted a claim for increased on February 2, 2014, which was not acted upon by the RO. See VA Form 21-526b (Veteran’s Supplemental Claim for Compensation). Accordingly, this is the date of claim. The remaining question for consideration is whether it was factually ascertainable that there was an increase in disability within a year prior to the February 5, 2014, claim; whether the increase in disability occurred after the filing of the February 5, 2014, claim; or whether the increase preceded the February 5, 2014, claim by more than a year. Under Diagnostic Code 8516 (ulnar nerve), the following ratings apply: a 10 percent rating is warranted for mild incomplete paralysis of the major extremity; a 30 percent rating is warranted for moderate incomplete paralysis of the major extremity. A 40 percent rating is warranted for severe incomplete paralysis of the major extremity. A 60 percent rating is warranted for complete paralysis of the major extremity, respectively, with the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. In this case, a July 9, 2013, VA EMG study consult reflected constant numbness tingling in the 4th and 5th right digits which worsens with bending elbow; right hand weakness; difficulty picking up objects; difficulty sewing clothes; little relief with tramadol; light touch decreased on palmar surface of right hand; vibration decreased; and sensory ulnar neuropathy. A July 9, 2013, addendum to the EMG report noted “NCS evidence which suggests a severe, nonlocalizable right sensory ulnar mononeuropathy.” (Emphasis added). Viewing all the evidence in a light most favorable to the Veteran, the most appropriate date from which to grant an increased rating should be July 9, 2013, the date of the EMG study revealing severe ulnar neuropathy (i.e., the earliest date as of which it is ascertainable that an increase in disability occurred a factually). See 38 C.F.R. § 3.400 (o)(2)). There is no evidence of record to indicate an increased rating is warranted prior to this date. The Veteran asserts that his right hand ulnar nerve injury disability is more severe than what is represented by the currently assigned 30 percent rating. As noted above, the Veteran’s right hand disability is rated under DC 8516 (ulnar nerve). A 40 percent rating is warranted for severe incomplete paralysis of the major extremity. A 60 percent rating is warranted for complete paralysis of the major extremity, respectively, with the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Again, the Veteran had an EMG study performed in July 2013 which noted severe ulnar neuropathy. The Veteran also reported constant pain, numbness, and tingling in the 4th and 5th right digits which worsened with bending elbow; right hand weakness; difficulty picking up objects; difficulty sewing clothes; little relief with tramadol; light touch decreased on palmar surface of right hand; vibration decreased; and sensory ulnar neuropathy. The Veteran underwent a VA peripheral nerves examination in June 2014. He reported that he could not longer hold objects with his right hand. He stated, “I have no feeling in the pinky and the one next to it. They wanted to do surgery, and I said no.” He stated that the pain was an 8/10. The examiner noted atrophy at the hypothenar eminence of the right hand; decreased touch; decreased soft/dull/sharp and touch sensation. The Veteran underwent a VA peripheral nerves examination in May 2016. He reported that his condition had worsened. He endorsed weakness, numbness, and tingling in the right hand. Right upper extremity numbness was noted as “severe” on physical examination. Wrist extension, grip, pinch was 4/5. No atrophy was noted. DTRs were normal. Right hand/finger (C6-8) sensation was absent. The examiner noted moderate incomplete paralysis of the ulnar nerve. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right hand ulnar injury warrants a higher 40 percent evaluation under Diagnostic Code 8516, at least for the period from July 9, 2013 to April 28, 2016, and from June 1, 2016. In other words, the Veteran's right hand disability more closely approximates severe incomplete paralysis of the ulnar nerve. On that basis, the Veteran’s subjective reports indicate that he is unable to hold and pick up objects with his right hand and that he suffers from constant pain/numbness in the right hand, particularly, the 4th and 5th digits. Objectively, his neuropathy has been described as “severe” in nature, as has his numbness in the right upper extremity. Overall, based on the subjective and objective findings documenting the extent of functional impairment caused by the Veteran's service-connected right hand injury, the Board finds that it more closely approximates a 40 percent evaluation for severe incomplete paralysis of the ulnar nerve under Diagnostic Code 8516. However, the record does not demonstrate that the right hand injury presents symptoms consistent with the rating criteria for a 60 percent evaluation for complete paralysis of the ulnar nerve. Indeed, there have have been no VA examination or clinical findings of right ulnar complete paralysis or symptoms approximating complete paralysis. While there was a singular finding of atrophy on examination in 2014 (which was not present on examination in 2016), deep tendon reflexes of the right hand have been normal; his muscle strength has been no worse than 4/5 (i.e., active movement against some resistance); and reflexes have been 2+ throughout. Therefore, the Veteran’s right hand disability is no more than 40 percent disabling. In short, resolving all reasonable doubt in favor of the Veteran, a higher 40 percent evaluation, but no higher, for right hand ulnar nerve injury is granted, for the period from July 9, 2013 to April 28, 2016, and from June 1, 2016.. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.