Citation Nr: 21073329 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-32 634 DATE: December 8, 2021 ORDER The reduction in the disability rating for left ulnar nerve palsy from 30 percent, effective August 1, 2013, was proper. A 20 percent rating, but no more, for left ulnar palsy, is granted effective August 1, 2013. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A December 2012 rating decision proposed a reduction of the disability rating assigned for left ulnar nerve palsy from 30 percent to 10 percent. 2. A May 2013 rating decision effectuated the proposed reduction of the disability rating for left ulnar nerve palsy from 30 percent to 10 percent effective August 1, 2013. 3. The record shows that the Veteran's left ulnar nerve palsy was manifested by symptoms approximating mild in-complete paralysis prior to November 18, 2014. CONCLUSIONS OF LAW 1. The reduction in the disability rating for left ulnar nerve palsy from 30 percent, effective August 1, 2013, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), (i), 3.159, 3.344, 4.115b, Diagnostic Code 8516. 2. The criteria for a 20 percent rating, but no more, for left ulnar nerve palsy, for the period since August 1, 2013, have been met. 38 C.F.R. §§ 3.102, 3.159, 3.344, 4.115b, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from December 2005 to January 2009. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2013, June 2015, and September 2015 Regional Office (RO) rating decisions. 1. Whether it was proper to reduce the Veteran's disability rating from 30 percent to 10 percent for left ulnar nerve palsy In this case, the Veteran was in receipt of a 30 percent rating for her service-connected left ulnar nerve palsy. In a December 2012 rating decision, the RO proposed to reduce the Veteran's service-connected left ulnar nerve palsy from 30 percent to 10 percent. In a May 2013 rating decision, the RO reduced the Veterans rating to 10 percent effective August 1, 2013. The Veteran asserts her left ulnar nerve palsy did not improve and so, the reduction in her rating was not appropriate. As an initial matter, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. Moreover, the Veteran must be notified that he has 60 days to present additional evidence showing that compensation should be continued at the present level and that he has a right to a hearing to present evidence if he wishes. 38 C.F.R. § 3.105 (e). Here, the Veteran was sent a letter in January 2013 accompanying the rating decision informing her of the proposed action, the reasons and bases therefore, and presented her with 60 days to present additional evidence and to testify at a hearing before the RO. In January 2013, the Veteran, through her representative, requested a predetermination hearing. An April 2013 letter informed the Veteran that a predetermination hearing was scheduled for May 3, 2013. However, the Veteran did not attend. Therefore, she was properly notified of her rights and given the appropriate time to submit evidence before her rating was reduced effective August 1, 2013. As such, VA met the due process requirements under 38 C.F.R. § 3.105 (e) and (i). Having determined that the procedural requirements have been met, the Board turns to whether the reduction was warranted on a factual basis. Specifically, the Veteran's left ulnar nerve palsy was rated under Diagnostic Code 8516, which pertains to paralysis of the ulnar nerve. This diagnostic code states when there is mild paralysis of the ulnar nerve, a 10 percent evaluation is assigned. When there is moderate paralysis of the ulnar nerve of the minor extremity, a 20 percent evaluation is assigned, when there is severe paralysis of the ulnar nerve of the minor extremity, 30 percent evaluation is assigned. A 50 percent is assigned for the minor side when there is complete paralysis with "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. As an initial matter, the Board finds that the rating reduction from 30 percent effective August 1, 2013, for left ulnar nerve palsy was appropriate. Specifically, the Veteran's original rating was based on a VA examination performed in August 2010. On that occasion, the Veteran stated that he experienced hand cramps which caused his hand to lock into a "semi-fist." Such cramps occurred approximately once every 3-4 days, and was characterized as "moderate" in severity. Muscle strength was observed to be abnormal, as grip strength was diminished after repetitive motion. There was also diminished sensitivity to vibration or pinprick. At the Veteran's next VA examination in November 2012, the examiner noted mild intermittent pain and mild numbness in the Veteran's upper left extremity. While she mentioned experiencing a "sharp shooting pain" in her hand, there was no indication of the cramping and weakness that she experienced at the prior examination. Upon examination, she exhibited normal muscle strength testing, and her symptoms in the left upper extremity was limited to mild intermittent pain and mild numbness. Sensory functioning was seen to be "decreased," although there was no indication of the cramping and weakness she showed in 2010. Overall, the examiner characterized the Veteran's limitations as mild incomplete paralysis. When comparing these two examinations, it does appear that there was improvement. In this regard, the specific testing performed in 2010 and 2012 appears somewhat consistent, especially in terms of pinprick and vibration testing (which was characterized as either "abnormal" or "diminished"). However, the Board is persuaded by the fact that the Veteran's more considerable symptoms mentioned in 2010, such as complaints of grip strength, cramping and the need to physically agitate her hand in order for it to perform, were not mentioned in the 2012 exam. The Board also notes a normal reflex exam in 2012. As such, while the improvement was not necessarily significant, there was nevertheless improvement. Indeed, such improvement in the years after her cubital tunnel surgery in 2008 was to be expected, and there was no indication that this corrective surgery was a failure. Therefore, as improvement has been clinically shown, the reduction was appropriate. Thus, the only question that remains is whether a rating in excess of the 10 percent rating she was assigned, effective August 2013. As discussed above, under DC 8516, a 10 percent rating is warranted when there is mild incomplete paralysis of the ulnar nerve. When there is moderate paralysis of the ulnar nerve of the minor extremity, a 20 percent evaluation is assigned, when there is severe paralysis of the ulnar nerve of the minor extremity, 30 percent evaluation is assigned. Here, as noted above, the Veteran's left ulnar nerve was characterized by the VA examiner as "mild" incomplete paralysis, which warrants a 10 percent rating. Moreover, the medical testing, which showed only mild intermittent pain and numbness, and no limitations in reflexes, muscle strength and no muscle atrophy, supports this conclusion. However, the Board does note that a later VA examination in November 2014 led the RO to grant a 20 percent rating. On that occasion, she reported residual complete numbness of 4th and 5th digits and ulnar side of left hand. Upon examination, the examiner noted moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias in the left upper extremity and severe numbness in the left upper extremity. The Veteran's elbow flexion, elbow extension, wrist flexion, and wrist extension showed normal muscle strength. The Veteran also had 1+ (hypoactive) reflexes for her triceps in the reflex examination. The Veteran's sensory examination indicated absent sensation in her left hand/fingers. The examiner noted that Veteran showed moderate incomplete paralysis of the left ulnar nerve. In the Board's view, the examinations present a somewhat inconsistent disability picture, and it is more likely that a 20 percent rating is a better characterization of the Veteran's disability since the reduction. However, a disability rating in excess of 20 percent is not warranted. The objective medical evidence indicates that the Veteran at worst suffered from moderate incomplete paralysis of the left ulnar nerve. Overall, under the circumstances, the Board concludes that the RO's rating action to effectively reduce the Veteran's disability rating for left ulnar nerve palsy from 30 percent to 10 percent, effective August 1, 2013, was proper as her left ulnar nerve palsy had shown improvement. However, a 20 percent rating, is warranted for the entire period since the reduction, and is granted, effective August 1, 2013. The claim is granted to this extent. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking entitlement to TDIU. She stated that she last worked as a cook from August to October 2011 and has not worked since. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16 (a). The Veterans total disability rating is currently 60 percent disabling. The Board may not decide an extraschedular TDIU claim in the first instance if there is a reasonable possibility that the claim may be granted. If the Veteran does not meet the schedular criteria for TDIU, then his claim must be referred to the Director of Compensation for an extraschedular TDIU opinion. The matters are REMANDED for the following action: 1. Refer the claim to the Director of Compensation Service to obtain an opinion regarding entitlement to TDIU on an extraschedular basis B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica