Citation Nr: 21065337 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 20-27 901 DATE: October 25, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left ulnar neuropathy prior to June 29, 2016 is denied. Entitlement to a disability rating of 20 percent, but not higher, for left ulnar neuropathy effective June 29, 2016 is granted. FINDINGS OF FACT 1. The weight of competent, credible and probative evidence shows that prior to June 29, 2016 the Veteran's left ulnar neuropathy is best characterized by mild incomplete paralysis of the ulnar nerve. 2. From June 29, 2016, the Veteran's left ulnar neuropathy continued to be assessed as mild but also impaired grip with difficulty holding small objects. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ulnar neuropathy prior to June 29, 2016 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8716 (2020). 2. The criteria for a rating of 20 percent, but not higher, for left ulnar neuropathy, effective June 29, 2016 are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, DC 8716 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force as an enlisted airman from May 1962 to May 1966 and as a commissioned officer in the U.S. Air Force from July 1980 to June 1992 with additional service in the Mississippi Air National Guard from July 1967 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO) that granted service connection for left ulnar neuropathy and assigned a 10 percent rating, effective January 18, 2012. The Veteran's claim was remanded by the Board in November 2020 for further development. There has been substantial compliance with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim 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); Fenderson v. West, 12 Vet. App. 119 (1999). To the extent that some of the disabilities on appeal have been assigned staged ratings, the Board has considered the propriety of the rating at each stage. The Veteran's disability is evaluated under 38 C.F.R. § 4.124a , Diagnostic Code 8716 neuralgia of the ulnar nerve. Mild incomplete paralysis of the ulnar nerve is to be rated as 10 percent disabling for either the major or minor extremity. A 20 percent rating is assigned for moderate incomplete paralysis of the ulnar nerve of the minor arm, while it is 30 percent for the major arm. A 30 percent rating is also assigned for severe incomplete paralysis of the minor arm, while it is 40 percent for the major extremity. Finally, complete paralysis of the ulnar nerve; the "griffin claw" deformity due to flexor contraction of the ring and little fingers, atrophy very marked in 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 the wrist weakened, warrants a 50 or 60 percent rating depending on whether the minor and major extremity is warranted. Entitlement to a rating in excess of 10 percent In January 2012, the Veteran submitted a claim of service connection for left ulnar neuropathy. The Veteran submitted records of private care by Dr. B.B dated in November 2006 that showed reports of left elbow tenderness and discomfort with mild decreased sensation which the physician attributed to a cervical spine disorder. The Veteran also submitted records of private care from Dr. A.H. that included the results of an electrodiagnostic study reported in October 2012. The study showed left mild to moderate carpal tunnel syndrome and possible left ulnar entrapment but with normal sensory response. The physician commented on a history of diabetes. Neither physician mentioned events in service. In March 2013 a VA examination was provided. The Veteran reported that he was right handed. The Veteran reported that left upper extremity neuropathy was caused by a fracture of the left hand in 1968 and a fall on his left arm in 1987. The examiner noted the Veteran's report of mild left upper extremity pain, paresthesias, and numbness. Muscle strength, reflexes, and sensation were normal on the left upper extremity. After consideration of a July 2010 electrodiagnostic testing, the examiner found that the left ulnar and median nerve systems were normal. See March 2013 VA Examination, p. 11. The RO denied service connection in August 2013. In September 2013, the Veteran submitted a timely notice of disagreement (NOD) and then perfected his appeal. In June 2015 the Board issued a remand order, having found the March 2013 examination to be inadequate, given that medical treatment records showed evidence of carpal tunnel syndrome and possible left ulnar entrapment localized at the elbow. As such, the Board issued a remand for a new examination. See June 2015 Remand BVA. A VA examination was provided on June 29, 2016. The Veteran reported constant discomfort "like hitting the funny bone" from the elbow down to the hands, along with intermittent pain in the left hand that was described as a sensation akin to "pins and needles" along with cramps and numbness. See August 2016 C&P Exam, p. 2. The examiner referred to a July 2016 electrodiagnostic study that confirmed left ulnar neuropathy. The examiner also noted the 1983 fall in service and the 2006 private physician's findings. The examiner found that the current disorder was likely caused by the left elbow injury in service. The examiner noted diminished light touch and "pins and needles" sensation and numbness in the fingers and the Veteran's report of difficulty holding small things such as a pencil, fork, or spoon or holding drinks because of shaking. The examiner noted that the discomfort is often accompanied by weakness of grip and rarely internal wasting but did not make clear that grip and wasting were present at that time. Taken as a whole, the VA examiner opined that the Veteran's condition showed mild intermittent and constant pain but moderate numbness and incomplete paralysis of the left ulnar nerve. Id at 5. The functional impact of the Veteran condition was found to be having a weak grip on the left hand, which in turn caused mild impairment in activities of daily living. Id at 8. In January 2017 the RO granted service connection for the Veteran's left ulnar neuropathy, rated at 10 percent from the date of claim. In a February 17, 2017 notice of disagreement, the Veteran noted that "I have lost control of my left hand. I can't hold onto anything." See February 2017 NOD. Another VA examination was provided in April 2020. The Veteran reported constant episodes of pain, numbness, and paresthesia of left hand, forearm and distal hands, including frequent dropping of objects in the left hand. See April 2020 C&P Exam, p. 5. The examiner summarized the entire history of injury in service and treatment and examinations since 2006 in detail including the 2016 electrodiagnostic testing. Upon clinical examination, the examiner noted no constant pain, but mild intermittent pain, paresthesias/dysesthesias and numbness found to be "moderate." There was slight loss of muscle and grip strength, reflexes, and some decreased sensation. Id. Taken together, the VA examiner found that the Veteran's left ulnar neuropathy had mild incomplete paralysis of the ulnar and median nerve systems. The examiner also noted shortcomings in the upper radicular group which addresses the shoulder and elbow but not the hands and fingers and is therefore less applicable to the Veteran's specific symptoms. Id at 9. The functional impact was that the Veteran "cannot hold objects on left hand or carry objects with tendency to let go or lose control of hand due to weakness." Id at 15. In April 2020 a Statement of the Case (SOC) was provided, in which the Veteran's 10 percent rating was continued. The Veteran perfected his appeal via VA Form 9 in June 2020. There, he wrote that "my left forearm and all of [my] fingers now are completely numb and cramping all the time. I feel that earlier effective date January 18, 2012 and a higher than 10 percent rating." See June 2020 Form 9. In November 2020 the Board denied the Veteran's claim for an earlier effective date and issued a remand order regarding his disability rating, having found that the Veteran's lay statements were sufficient to require the ordering of a new VA examination. A VA examination was provided in July 2021. The examiner again provided a detailed summary of the history including the last VA examination. The Veteran reported spasms and numbness of all fingers with decreased sensation. No constant or intermittent pain was found, with paresthesias/dysesthesias and numbness being mild. See July 2021 C&P Exam, p. 7. The VA examiner found that was mild incomplete paralysis of the median and ulnar nerve systems. Id at 11. The functional impact of the Veteran's disability was found to be that the "Veteran will have difficulty in handling delicate objects and activity that will require repetitive movement like typing." Id at 17. A Supplemental Statement of the Case (SSOC) was provided in July 2021. No further arguments have been made by the Veteran or his representative. See July 2021 Appellate Brief. The claim is now before the Board. The Board finds that the criteria for a next higher, 20 percent rating on the bases of moderate incomplete paralysis have not been met prior to February 17, 2017 but that a rating of 20 percent under Diagnostic Code 8516 is warranted for a moderate disability from that date. The Board considered the subjective assessments of the examiners as primarily mild and that both median and ulnar nerve systems were affected. In March 2013, July 2016, April 2020 and July 2021 the VA examiners have consistently found the Veteran's condition to be "mild incomplete paralysis." the VA examiners having the training and expertise necessary to administer the appropriate tests for a determination as to the type and degree of impairment associated with the Veteran's complaints, as well as the training and expertise to provide the requisite information for an evaluation of the disability under the rating schedule. A review of the Veteran's medical treatment records does not contain any evidence that contradicts the findings of the Veteran's VA examinations. On the other hand, the Board acknowledges the Veteran's sincere belief in that the symptomatology of his condition has progressively worsened, along with the functional impact of numbness, pain, discomfort and issues with both gripping and holding objects. In assigning the subjective level of moderate starting on June 29, 2016, the Board considered that it was the first report of difficulty with gripping and occasionally losing control of objects in the left hand. Moreover, the examiner did assess the overall level of impairment as moderate, although not repeated in later examinations. Nevertheless, this functional loss contributes to the Veteran's reports of discomfort, numbness, and intermittent pain that warrants the increase rating. The Board considered whether ratings under the criteria for both ulnar and median nerve systems should be assigned. However, using the descriptions of the associated functional loss in the rating criteria, the Board finds that the sensory and functional loss is mentioned in both criteria so that more than one rating would be impermissible pyramiding. Compensation for the same disability (that is loss of function) under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2020). A rating in excess of 20 percent is not warranted at any time because the functional limitations are not so severe that the Veteran is unable to use the non-dominant left lower arm and hand for other normal activities such as driving an automobile or satisfactorily gripping larger objects or providing stability with a support device. The Board finds that the Veteran's February 2017 statement in the NOD that he lost control of his left hand is not consistent with all the other medical evidence of weak grip but not total loss of control of the hand. For the aforementioned reasons, the Board finds that the Veteran's left ulnar neuropathy does not warrant a rating in excess of 10 percent prior to June 29, 2016 but that a rating of 20 percent, but not higher, is warranted effective that date. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, Associate 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.