Citation Nr: 20045074 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-06 344A DATE: July 7, 2020 ORDER Entitlement to an initial evaluation of 40 percent for ulnar nerve neuropathy of the right hand, status post ulna nerve release at the wrist with flexion contracture right fifth finger is granted. FINDING OF FACT Ulnar nerve neuropathy of the right hand (major) is productive of severe incomplete paralysis of the ulnar nerve. CONCLUSION OF LAW The criteria for an initial evaluation of 40 percent for ulnar nerve neuropathy of the right hand, status post ulna nerve release at the wrist with flexion contracture right fifth finger have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to June 1993. The Board remanded this matter in October 2018 for evidentiary development. 1. Entitlement to an initial evaluation of 40 percent for ulnar nerve neuropathy of the right hand, status post ulna nerve release at the wrist with flexion contracture right fifth finger 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate 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 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, a uniform 40 percent evaluation is warranted for the entire period on appeal. The Veteran is in receipt of an initial 30 percent evaluation for ulnar nerve neuropathy of the right hand under Diagnostic Code 8516, effective June 17, 2010. The Veteran has challenged the initial evaluation. Diagnostic Code 8516 is specific to the ulnar nerve. As a preliminary matter, the evidence of record indicates that the Veteran’s right arm is his dominant or “major” arm. Under Diagnostic Code 8516, incomplete paralysis of the major arm warrants a 10 percent rating for “mild” disability, a 30 percent rating for “moderate” disability, and a 40 percent rating for “severe” disability. A 60 percent evaluation is warranted for complete paralysis of the ulnar nerve in the major arm. Complete paralysis includes 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. 38 C.F.R. § 4.124a. The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). At a September 2011 VA examination, there was decreased sensation and painful motion. The Veteran reported weekly flareups. Range of motion was limited and there was painful motion in the little finger. There was no gap between the thumb pad and fingers. Painful motion began at a gap of 1 inch in the ring and little fingers. There was not additional limitation upon repetitive use testing. Grip strength was 2/5. At a February 2015 VA examination, the examiner documented strength in the right arm as 5/5 for elbow flexion, 5/5 for elbow extension, 5/5 for wrist flexion, 3/5 for wrist extension, and 1/5 for grip and pinch. There was no muscle atrophy. Reflexes were normal. There was decreased sensation in the hand/fingers and normal sensation in the shoulder area and inner/outer forearm. Specific to the ulnar nerve of the right arm, the examiner documented incomplete paralysis of moderate severity. All other nerve groups were normal. The Veteran used a brace to stabilize the right wrist and to avoid injury. At an August 2019 VA examination, the examiner documented the following symptoms in the right upper extremity attributable to the ulnar nerve disorder: moderate constant pain; moderate paresthesias and/or dysesthesias; and moderate numbness. There was not intermittent pain. Strength in the right arm was 4/5 for elbow flexion, 4/5 for elbow extension, 4/5 for wrist flexion, 4/5 for wrist extension and 1/5 for grip and pinch. There was no muscle atrophy. Reflexes were hypoactive in the biceps, triceps and brachioradialis. Sensation was normal in the shoulder area, decreased in the inner/outer forearm and absent in the hands/fingers. Specific to the ulnar nerve of the right arm, the examiner documented incomplete paralysis of moderate severity. All other nerve groups were normal. The Veteran used a compression glove. At the Veteran’s June 2018 Board hearing, he reported daily moderate pain, weakness, numbness and tingling. He testified that he had an inability to grip things, and the weakness and immobility of his hand prevented him from buttoning shirts and performing basic daily activities with his right hand. The undersigned Veterans Law Judge (VLJ) observed that the Veteran’s 4th and 5th fingers were partially flexed and were “claw like.” The Veteran demonstrated an ability to move these fingers slightly. The Board has also reviewed VA treatment records and private treatment records, which reveal symptoms and manifestations consistent with the VA examinations. After a review of the record, an initial evaluation of 40 percent is warranted. With consideration of the objective medical findings and the undersigned’s observations at the Board hearing, the Board believes that the Veteran’s ulnar nerve disorder manifests in incomplete severe paralysis. In making this determination, the Board pays particular attention to the lack of grip and general hand strength, as well as other symptoms such as pain, numbness and paresthesias. With respect to the undersigned VLJ’s reference to the “claw like” appearance of the Veterans right hand at the hearing, we note that objective medical evidence did not document complete paralysis of the right hand consistent with the applicable Diagnostic Criteria. Among other things, there was not muscle atrophy and the Veteran maintained some ability to move all digits, albeit to a limited extent. As such, an evaluation in excess of 40 percent is not warranted. The Board has not overlooked the statements by the Veteran with regard to the severity of his disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran’s reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations and treatment records. It is of note, that the Veteran testified that he believed his disorder manifested in “severe” symptoms but did not report complete paralysis of the right hand. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). In light of the above, the Board finds that an initial 40 percent evaluation is warranted. However, the preponderance of the evidence is against a finding that the criteria for an evaluation in excess of 40 percent under Diagnostic Code 8516 have been met. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.