Citation Nr: 21070769 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 14-14 634 DATE: November 26, 2021 ORDER A rating in excess of 70 percent for right hand neuropathy, to include a rating in excess of 40 percent prior to May 6, 2015 is denied. REMANDED The claim for a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence does not show that the Veteran's right hand neuropathy has caused complete paralysis of the right lower radicular nerve group. 2. The evidence does not show that prior to May 6, 2015 the Veteran's right hand neuropathy had caused severe incomplete paralysis of the right lower radicular nerve group. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for right hand neuropathy, to include a rating in excess of 40 percent prior to May 6, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 1977 to February 1980. Increased Rating Right Hand Neuropathy A rating decision in April 2011 granted service connection for right hand neuropathy secondary to right distal forearm injury with a 30 percent rating. In April 2013, the Veteran filed an increased rating claim for a rating in excess of 30 percent for his right hand neuropathy. A rating decision in October 2017 increased the rating to 40 percent effective April 23, 2013 (the date that VA received the increased rating claim) and 70 percent effective May 6, 2015 (the date of a VA examination). The Veteran is seeking higher ratings. At his Board hearing in November 2020, the Veteran testified that his right hand neuropathy symptoms had worsened since the last VA examination in 2015. He stated that he did not have much strength in his right hand, could not grip well and always dropped things. In December 2020, the Board remanded the issue for a new VA examination to assess the severity of the Veteran's right hand neuropathy. The Veteran's right hand neuropathy is rated under Diagnostic Code 8513 (all radicular groups). Moderate incomplete paralysis of the affected nerves is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis of the affected nerves is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, and complete paralysis of the affected nerves is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8513. As the Veteran is right-handed, his right hand is his major extremity. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See the note preceding DC 8510. VA examination in June 2013 diagnosed the Veteran with right median, ulna and radial neuropathy due to injury. The examiner noted that the Veteran is right handed, and found that he had mild incomplete paralysis in the right ulnar nerve, moderate incomplete paralysis in the right median nerve, and moderate incomplete paralysis in the right radial nerve. The examiner noted no symptoms (pain, paresthesias or dysesthesias, or numbness) attributed to the Veteran's peripheral nerve condition in the right hand. Reflex examination and sensory examination of right upper extremity were all normal. The examiner indicated that the Veteran's right hand neuropathy caused decreased grip strength and poor proprioception in the hand. VA examination in May 2015 diagnosed the Veteran with peripheral neuropathy secondary to right distal forearm injury. The examiner found severe incomplete paralysis in the right median nerve, right ulnar nerve, and lower radicular group with severe pain and numbness in the right hand. The examiner indicated that the Veteran's right hand neuropathy caused limited griping strength, inability to lift heavy objects and ongoing pain. VA examination in April 2021 diagnosed Veteran with right hand neuropathy secondary to right distal forearm injury and bilateral carpal tunnel syndrome. The examiner found mild incomplete paralysis in the right radial nerve, moderate incomplete paralysis in the right median nerve, and moderate incomplete paralysis in the right ulnar nerve, with severe pain and moderate numbness in the right arm. The examiner indicated that the Veteran's right hand neuropathy caused difficulty in lifting, gripping or holding objects, or handling fine manipulation. As discussed above, the evidence shows that the Veteran has incomplete paralysis of right radial nerve, median nerve, ulnar nerve, if rated independently, can be evaluated under DC 8514, 8515, and 8516 respectively. However, 38 C.F.R. § 4.124a provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. See the note following DC 8719. Here, the AOJ properly evaluated the right hand neuropathy under DC 8513 (all radicular groups) as it contemplates multiple nerves injuries affecting the Veteran's right hand/arm. In addition, VA regulations prohibit evaluation of the same disability or the same or overlapping symptomatology under different diagnostic codes (which is called "pyramiding"). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). Asigning separate rating under DC 8514, DC 8515 and DC 8516 constitute pyramiding as injuries to radial nerve, median nerve, and ulnar nerve all contribute to the same and overlapping functional impairment of the upper extremity consisting of pain, paresthesias and/or dysesthesias, numbness or sensory loss, etc. If the schedular rating criteria wanted to rate impairment of different radicular nerves separately, there would be no purpose for Diagnostic Code 8513. VA treatment records do not show symptoms more severe than those reflected in the June 2013, May 2015, and April 2021 VA examinations. As discussed above, a 90 percent rating requires complete paralysis in the radicular groups in the major upper extremity under DC 8513. However, the Veteran's right hand neuropathy has not caused complete paralysis as shown by the 2013, 2015 and 2021 VA examinations. Accordingly, a rating in excess of 70 percent for right hand neuropathy is denied. The evidence also establishes that prior to the VA examination conducted on May 6, 2015, the Veteran's right hand neuropathy was not shown to have caused severe incomplete paralysis of the lower radicular group as required by a rating in excess of 40 percent under DC 8513. VA examination in June 2013 showed that the Veteran had mild incomplete paralysis in the right ulnar nerve, moderate incomplete paralysis in the right median nerve, and moderate incomplete paralysis in the right radial nerve. The examiner noted no symptoms (pain, paresthesias or dysesthesias, or numbness) attributed to the Veteran's peripheral nerve condition in the right upper ext remedy. Reflex examination and sensory examination of right upper extremity were all normal. As such, a rating in excess of 40 percent for right hand neuropathy prior to May 6, 2015 is denied. Of note, as to the Veteran's testimony at his November 2020 Board hearing stating that his right hand symptoms had worsened, it appears that he was describing the decreased functions of his right hand not only attributing to his neuropathy, but also to his inability to bend his right wrist. To the extent the Veteran wishes to file a claim for a right wrist disability, he should consult with his representative. REASONS FOR REMAND TDIU The December 2020 Board decision found that a TDIU claim was raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue to the Agency of Original Jurisdiction (AOJ) to ask the Veteran to complete and return a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In January 2021, the AOJ sent the VA Form 21-8940 and VA Form 21-4192 (Request for Employment Information) to the Veteran, but review of the claim's file does not show that these forms have been completed and returned to the VA. In addition, VA treatment records in July 2019 show that the Veteran was receiving Social Security Disability benefits. However, no medical records from Social Security Administration (SSA) have been associated with the file. Therefore, the matter is REMANDED for the following actions: 1. Send the VA Form 21-8940 and VA Form 21-4192 to the Veteran again and ask him to complete and return the forms. 2. Obtain medical records from SSA. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.