Citation Nr: 21063243 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-27 809 DATE: October 13, 2021 ORDER A disability rating in excess of 30 percent for the residuals of a right forearm laceration with medial nerve involvement (right median neuropathy) is denied. FINDING OF FACT The Veteran's right median neuropathy manifests by no more than moderate incomplete paralysis of the major extremity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for right median neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to September 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this case in January 2021 for a new examination to evaluate the current degree of the disability's impairment. As the requested development has been completed, no other action is required to comply with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that he is entitled to a rating greater than 30 percent for the residuals of a right forearm laceration, right median neuropathy. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. VA guidance states that the Veteran will likely describe moderate incomplete paralysis, and it will be medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In general, for severe incomplete paralysis, expect motor or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe, longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the disability picture for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for wholly sensory conditions instead of a minimum disability rating for more than wholly sensory conditions. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis, cranial or peripheral, 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 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. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, usually characterized by a dull and intermittent pain, of typical distribution to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Regarding impairment of motor functions, March 2017 VA occupational therapy consult and rehab daily attendance note state the Veteran's right median neuropathy causes decreased fine motor coordination. The Veteran reported a loss of control with trying to open food packets and difficulty with manipulating buttons. Coordination testing showed he completed the right-hand nine-hole peg test in 24 seconds, between the 25th and 50th percentile, and three weeks after, his time worsened slightly to 26.5 seconds, placing his right-hand coordination in the 25th percentile. The record shows that the Veteran's right median neuropathy results in a moderate sensory disturbance. June 2016, April 2017, and March 2021 VA examiners found the Veteran's right median neuropathy caused moderate paresthesias or dysesthesias and numbness. The June 2016 VA examination showed decreased sensation in the right hand and fingers. The March 2017 VA occupational therapy consult and rehab daily attendance note state the Veteran reported constant numbness in the right thumb, index, and middle finger since 1978. The April 2017 VA examiner noted the Veteran had numbness and tingling with deficits on examination above the elbow, on the radial side of the hand, and in the inner and outer forearms, which made her think of cervical radiculopathy although he has had two fusions. In an April 2017 VA evaluation and during the September 2020 hearing, he reported constant numbness in the right hand. The April 2017 and March 2021 VA examinations showed decreased sensation in the right forearm, hand, and fingers. Regarding loss of reflexes, the June 2016 and April 2017 VA examinations showed normal reflexes, but the March 2021 VA examination showed a hypoactive right bicep reflex. The record demonstrates the Veteran's right median neuropathy causes moderate constant and intermittent pain. The June 2016 VA examiner determined the Veteran experienced moderate constant pain. The March 2017 VA occupational therapy consult and rehab daily attendance note state the Veteran had no complaints of pain. The April 2017 VA examiner found the Veteran experienced no constant pain, only mild intermittent pain, and the March 2021 VA examiner found the Veteran experienced moderate constant and intermittent pain. Regarding strength, the June 2016 and April 2017 VA examinations showed less than normal grip strength with active movement against some resistance, with all other right upper extremity movements having normal strength. During the September 2020 hearing, the Veteran reported no grip strength. The March 2021 VA examination showed diminished right wrist extension strength with active movement against gravity and right grip and pinch with active movement with gravity eliminated. The record contains no evidence that the right median neuropathy resulted in trophic changes, muscle atrophy, or complete paralysis at any point during the period on appeal. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, moderate sensory disturbance, some loss of reflexes, moderate constant and intermittent pain, and diminished strength. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Veteran's right median neuropathy is currently rated under Diagnostic Code 8715 for neuralgia of the median nerve. See 38 C.F.R. § 4.124a. However, given that the Veteran's symptoms are not wholly attributed to dull and intermittent pain, the Board finds Diagnostic Code 8515 for incomplete paralysis of the median nerve most appropriately reflects the Veteran's disability picture. 38 C.F.R. § 4.124. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis, appropriately rated at 30 percent disabling as the Veteran is right-handed. To warrant a higher rating under Diagnostic Code 8515, the evidence must show severe incomplete paralysis of the median nerve of the right upper (major) extremity. Here, none of the Veteran's symptoms were found to be severe. Although the Veteran had diminished strength, there was no evidence of muscle atrophy. Although the Veteran had some loss of reflexes, there was no evidence of hyperactive reflexes. A higher rating is not warranted for neuritis, as the evidence does not demonstrate loss of reflexes and muscle atrophy during the relevant period. See 38 C.F.R. § 4.123. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. See Schafrath, 1 Vet. App. at 593. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for right median neuropathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.