Citation Nr: 21004427 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-03 334 DATE: January 27, 2021 ORDER A higher 50 percent rating, though no greater, is granted for service-connected right ulnar neuropathy. Entitlement to a total disability rating based on individual unemployability (TDIU) also is granted. FINDINGS OF FACT 1. The Veteran’s right ulnar neuropathy is as likely as not severe and affecting the radial, median, and ulnar nerves (lower radicular group) but does not result in complete (as opposed to incomplete) paralysis of these affected nerves. 2. His service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational experience.   CONCLUSIONS OF LAW 1. The criteria are met for a higher 50 percent rating, though no greater, for the service-connected right ulnar neuropathy. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs/Codes) 8512, 8516. 2. The criteria also are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to April 1966. In November 2019, in support of these claims, the Veteran testified before the undersigned Veterans Law Judge of the Board during a videoconference hearing. A transcript of the proceeding is of record. The Board subsequently remanded these claims in January 2020 - including to obtain all outstanding treatment records pertinent to these claims and to provide the Veteran a VA examination reassessing the severity of his right ulnar neuropathy and determining the functional impact of this service-connected disability on his employability. To this end, he underwent this needed VA examination in November 2020, and the report of the evaluation provides the necessary information, so the additional development directed to occur on remand has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998).   1. A higher 50 percent rating, though no greater, is granted for the service-connected right ulnar neuropathy The Veteran’s right ulnar neuropathy is under 38 C.F.R. § 4.124a, Diagnostic Code 8516. His right side is his dominant side and, thus, is considered the side of his “major” extremity. Neurological disability is evaluated based on the extent there is nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. According to Diagnostic Code 8516, mild incomplete paralysis of the ulnar nerve of the major extremity warrants a 10 percent rating; moderate incomplete paralysis warrants a 30 percent rating; and severe incomplete paralysis warrants a 40 percent rating. Complete paralysis of the ulnar nerve warrants a 60 percent rating, but requires the “griffin claw” deformity due to flexor contraction of the ring and little fingers, atrophy very marked in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. According to 38 C.F.R. § 4.124a, 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, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis,” with respect to 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a.   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. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. 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. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The descriptive words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not more specifically defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. As a preliminary matter, the Board finds that it is appropriate to change the Diagnostic Code under which the Veteran’s right ulnar neuropathy is rated under for the entire appeal period. His right ulnar neuropathy is currently rated as 40-percent disabling under Diagnostic Code 8516 for severe incomplete paralysis of the median nerve. But the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as the Veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Service connection for a disability is not severed simply because the situs of the disability, or the Diagnostic Code associated with it, is corrected to determine more accurately the benefit to which the Veteran is entitled. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Here, the Board finds that it is more appropriate to rate the Veteran’s right ulnar neuropathy under Diagnostic Code 8512 for impairment of the lower radicular group. This is because, for the entire appeal period, the evidence of record has shown that he has impairment of the radial, median, and ulnar nerves. The recent November 2020 VA examination, on remand, is the first to specifically identify which nerves are affected, indicating that more than one nerve is involved. However, this is supported by other evidence of record showing the Veteran has generally reported similar symptomatology referable to his right lower forearm and hand for the entire appeal period. Thus, resolving all reasonable doubt in his favor, the Board finds that it is as likely as not that he has experienced nerve impairment of the radial, median, and ulnar nerves throughout the appeal period. Nevertheless, although the Veteran has experienced nerve impairment in these nerves, separate ratings cannot be assigned for each nerve since this is precluded by the note in 38 C.F.R. § 4.124a barring separate ratings for upper extremity peripheral nerve disabilities that involve multiple nerves. As Diagnostic Code 8512 contemplates the symptoms and impairment due to radial, ulnar, and median neuropathy, the Board finds that it more accurately reflects his disability picture. Additionally, reassignment of the disability rating to Diagnostic Code 8512 provides a higher rating to him, as will be discussed, and the maximum rating under Diagnostic Code 8512 is greater than the maximum rating available under Diagnostic Code 8516 (ulnar nerve impairment) and equal to the maximum rating available under Diagnostic Code 8514 (radial nerve impairment) and Diagnostic Code 8515 (ulnar nerve impairment). The Board, therefore, reassigns the disability rating from Diagnostic Code 8516 to Diagnostic Code 8512.   During the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for an increased rating for his right ulnar neuropathy is contained in the reports of August 2017 and November 2020 VA examinations. The remainder of the medical evaluation and treatment records contain no evidence materially inconsistent with the findings of those examinations as relating to the severity of his disability. And, based on this evidence, the Board finds that a higher 50 percent rating is warranted under Diagnostic Code 8512. 38 C.F.R. § 4.124a. During the earlier August 2017 examination, the examiner affirmed the Veteran is right-hand dominant (i.e., right-handed). Thus, this is his dominant/major upper extremity. He reported experiencing numbness and tingling in the fourth and fifth digits of his right hand and pain. He endorsed mild intermittent pain, paresthesias/dysesthesias, and numbness of his right upper extremity. Muscle strength testing revealed active movement against some resistance (4/5) for right wrist flexion, extension, and grip with normal strength for right pinch (thumb to index finger). He did not have muscle atrophy, but sensation was decreased for his right hand/fingers. Notably, though, the examiner indicated the Veteran had what amounted to mild incomplete paralysis of his right median nerve. Following the Board’s January 2020 remand of this claim, the Veteran had another VA examination in November 2020 reassessing the severity of his right ulnar neuropathy. During this more recent evaluation, he reported intermittent spasms and pain in the right fourth and fifth digits with contracting of the palm and severe pain lasting 15-20 minutes. The pain occurred 2-3 times per week and caused him to drop objects when it happened. He said he has constant numbness in his right forearm, difficulty opening his right hand fully, permanent weakness and loss of strength in his right hand. He cannot drive, cut certain foods, or hold anything in his right hand. He requires assistance with activities of daily living (ADLs), such as washing his hair, dressing, showering, cutting food, and driving. The examiner indicated there is mild constant pain, paresthesias/dysesthesias, and numbness of the Veteran’s right upper extremity with moderate intermittent pain. Muscle strength testing revealed active movement against some resistance (4/5) for right wrist flexion, extension, grip, and pinch (thumb to index finger).   He did not have muscle atrophy, but sensation was decreased in his right hand/fingers. The examiner indicated the Veteran’s symptoms amount to moderate incomplete paralysis of his right median nerve. Therefore, initially, the Board finds that, when resolving all reasonable doubt in the Veteran’s favor, his right ulnar neuropathy has more nearly approximated severe incomplete paralysis of the lower radicular group, in turn warranting a higher 50 percent rating, for the entire appeal period. He has consistently reported experiencing pain and numbness. There also has been decreased muscle strength and decreased sensation to touch/vibration. As well, he has reported consequently dropping things and difficulty opening his hands. Significantly, the RO already has determined that the severity of his right ulnar neuropathy more nearly approximates severe incomplete paralysis, and the Board will not disturb that finding. In making this determination, the Board has considered the Veteran’s belief, no doubt sincere, that his symptoms are of such severity as to warrant a higher rating. See McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings which, as already mentioned, is based on the average impairment of earning capacity – including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than his self-assessment of the severity of his disability. The examination also considered his competent (subjective) statements regarding the severity of his disability. Furthermore, the higher disability rating being assigned accounts for the symptoms that he has reported experiencing during the relevant period at issue. For these reasons and bases, the Board finds that the evidence of record supports a higher, 50 percent, disability rating for the service-connected right ulnar neuropathy – but instead under Diagnostic Code 8512.   Neither the Veteran nor his representative has raised any other issues aside from entitlement to a TDIU that is being decided below, nor have any such other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU also is granted The Veteran filed this derivative claim for a TDIU June 2017, asserting that he is unemployable because of his service-connected right ulnar neuropathy. The RO also construed it as a claim for an increased rating for his service-connected right ulnar neuropathy. On the VA Form 21-8940 (TDIU application) he later submitted in September 2019, he also included his service-connected depression as additional reason he is unemployable and, thus, entitled to a TDIU. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities – provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities are considered one, collective, disability, so, too, are disabilities affecting a single bodily system. Id.  It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disability(ies) is sufficiently severe to cause unemployability. 38 C.F.R. § 3.341(a).  As a result of this decision, the Veteran now has a higher 50 percent schedular rating for his service-connected right ulnar neuropathy and a combined disability rating of at least 70 percent for the entire period at issue in this appeal. Therefore, his TDIU claim may be considered on a schedular basis under 38 C.F.R. § 4.16(a), in turn meaning the remaining question is whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation when considering his level of education, prior work experience and training, but not his advancing age or impairment owing to disabilities that are not service connected. On March 14, 2019, so during the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities The Board concludes that the evidence of record supports finding that the Veteran’s service-connected disabilities preclude him from continuing in or returning to the workforce in any substantially gainful (versus just marginal) capacity consistent with his level of education and prior work experience and training. Specifically, there is probative (meaning competent and credible) evidence establishing that the Veteran’s service-connected disabilities cause occupational impairment to the point that he should be considered unemployable. In analyzing the meaning of “substantially gainful employment,” Courts have concluded that “the test is whether a particular job is realistically within the physical and mental capabilities of the claimant.” Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). It is not necessary to find the Veteran is a total basket case before concluding he is unemployable. Accordingly, he need not establish “100 percent unemployability” to prove an inability to maintain a “substantially gainful occupation”; the use of the word “substantially” suggests an intent to impart flexibility into a determination of his overall employability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Here, the Veteran’s only occupation for 50 years was as a barber. His highest level of education is two years of college and he has no special training other than as a barber. He was self-employed and owned his own barber shop for many years, from 1989 to 2012, at which time he was forced to close his business due to his inability to continue cutting hair. See VA Form 21-8940 (TDIU application). Specifically, his right ulnar neuropathy prevented him from raising his arm and spasms in his right hand caused him to continually drop tools. See, e.g., February 2020 Veteran Statement. In short, his service-connected right ulnar neuropathy prevented him from continuing to have the skills intrinsic to his life-long occupation. Notably, the November 2020 VA examiner affirmed the Veteran may not be able to perform occupational duties due to his service-connected right ulnar neuropathy.   Accordingly, on this record, the Board finds that the Veteran’s service-connected disabilities – especially his right ulnar neuropathy, are shown to prevent him from engaging in any substantially gainful employment. Thus, entitlement to a TDIU by reason of his service-connected disabilities is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.