Citation Nr: 21076362 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-34 918 DATE: December 23, 2021 ORDER For the period prior to August 7, 2017, entitlement to an evaluation in excess of 20 percent for right ulnar neuropathy is denied. For the period beginning on August 7, 2017, entitlement to an evaluation in excess of 30 percent for right ulnar neuropathy (with cervical radiculopathy) is denied. For the period prior to August 13, 2013, entitlement to a 10 percent rating for a right wrist scar is granted. For the period beginning on August 13, 2013, entitlement to a compensable rating for a right wrist scar is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for degenerative joint disease of the right shoulder (right shoulder disability) is remanded. Entitlement to an evaluation in excess of 20 percent for residuals of a right wrist fracture is remanded. FINDINGS OF FACT 1. For the period prior to August 7, 2017, the Veteran's right ulnar neuropathy manifested by symptoms of moderate incomplete paralysis of the ulnar nerve. 2. For the period beginning on August 7, 2017, the Veteran's right ulnar neuropathy (with cervical radiculopathy) manifested by symptoms of moderate incomplete paralysis of the upper radicular group (fifth and sixth cervicals). 3. For the period prior to August 13, 2013, the Veteran's right wrist scar is shown to be painful; it is not shown to be unstable, or to involve an area of at least six square inches. 4. For the period beginning on August 13, 2013, the Veteran's right wrist scar is shown to be well-healed, and not painful or unstable; it is not shown to involve an area of at least six square inches. CONCLUSIONS OF LAW 1. For the period prior to August 7, 2017, the criteria for entitlement to an evaluation in excess of 20 percent for right ulnar neuropathy have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124a, Diagnostic Code 8515 (2021). 2. For the period beginning on August 7, 2017, the criteria for entitlement to an evaluation in excess of 30 percent for right ulnar neuropathy (with cervical radiculopathy) have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124a, Diagnostic Code 8610 (2021). 3. For the period prior to August 13, 2013, the criteria for entitlement to a 10 percent rating for a right wrist scar have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2013). 4. For the period beginning on August 13, 2013, the criteria for entitlement to a compensable rating for a right wrist scar have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1977 to August 1981. These matters come before the Board of Veteran's Appeals (Board) on appeal from October 2013 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the claims for further development. These matters are now returned to the Board for further appellate review. Recently, a September 2020 rating decision granted service connection for a cervical disability. As such, there remains no issue or controversy for decision on that claim. See Holland v. Gober, 10 Vet. App. 433, 436 (1997) (grant of service connection during the appellate process is "a full award of benefits on the appeal."). The Board acknowledges that the Veteran has other pending appeals claims in the legacy system for which a substantive appeal was filed in 2019 that will be the subject of a separate Board decision, as well as a more recent appeal filed under the Appeals Modernization Act (AMA) framework, which will also be the subject of a separate Board decision. 1. For the period prior to August 7, 2017, entitlement to an evaluation in excess of 20 percent for right ulnar neuropathy 2. For the period beginning on August 7, 2017, entitlement to an evaluation in excess of 30 percent for right ulnar neuropathy (with cervical radiculopathy) An October 2013 rating decision granted service connection for right ulnar neuropathy and assigned a 20 percent rating under Diagnostic Code 8515, effective June 18, 2008. A September 2020 rating decision combined the right ulnar neuropathy rating with the Veteran's service-connected right upper extremity cervical radiculopathy, and assigned a higher 30 percent rating under Diagnostic Code 8610, effective August 7, 2017. The Veteran seeks higher initial ratings. See Rating decision, October 2013; NOD, October 2013; SOC, May 2017; Form 9, May 2017. Diagnostic Code 8515, median nerve, paralysis of, provides a 10 percent rating for mild incomplete paralysis, 30 percent for moderate incomplete paralysis (20 percent for minor extremity), and 50 percent for severe (40 percent for minor extremity). Higher ratings are provided for complete paralysis. 38 C.F.R. § 4.124a (2021). As explained in detail below, the evidence shows the Veteran is left-handed, such that his right ulnar neuropathy rating is for the "minor" extremity. Diagnostic Code 8516, ulnar nerve, paralysis of, provides a 10 percent rating for mild incomplete paralysis, 30 percent for moderate incomplete paralysis (20 percent for minor extremity), and 50 percent for severe (40 percent for minor extremity). Higher ratings are provided for complete paralysis. 38 C.F.R. § 4.124a. Diagnostic Code 8610, upper radicular group (fifth and sixth cervicals), neuritis, provides a 20 percent rating for mild incomplete paralysis, 40 percent for moderate (30 percent for minor), and 50 percent for severe (40 percent for minor). Higher ratings are provided for complete paralysis. 38 C.F.R. § 4.124a. The schedule for ratings for diseases of the peripheral nerves provides that when involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Note to the schedule of ratings for diseases of the peripheral nerves provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. 38 C.F.R. § 4.124a. The Veteran was afforded VA examinations in August 2013, March 2019, and October 2020. The August 2013 VA examination report shows the examiner noted a diagnosed of right ulnar neuropathy, 2011. The examiner noted a detailed history of a right wrist fracture in service in 1979, followed by surgical treatment in 2005, then diagnosis of right ulnar neuropathy in 2011 by EMG testing. The examiner noted the Veteran is left hand dominant. The examiner noted symptoms of moderate constant pain, intermittent pain, and paresthesias and/or dysesthesias, and severe numbness. Regarding whether there was median nerve involvement, Phalen's sign was negative, but Tinel's sign was positive. The examiner opined there was no median nerve involvement, but there was ulnar involvement with moderate, incomplete paralysis. Decreased sensation to pinprick testing was noted. The examiner noted that EMG testing in 2011 was normal. The examiner opined that the right ulnar neuropathy did not affect the Veteran's occupational functioning. A March 2019 VA examination report shows the examiner diagnosed right ulnar neuropathy and carpal tunnel syndrome. The examiner noted a history of a right ulnar fracture in 2005 requiring surgical treatment. EMG testing revealed carpal tunnel syndrome. The examiner noted symptoms of numbness and tingling in all digits in the right hand, and that the Veteran wears a brace at night and takes gabapentin for treatment. The examiner noted symptoms of moderate constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain. Testing for median nerve involvement showed Phalen's sign and Tinel's sign were both positive. The examiner opined that the degree of median nerve involvement was moderate incomplete paralysis, and the degree of ulnar nerve involvement was moderate incomplete paralysis, and noted moderate incomplete paralysis of the upper radicular group (fifth and sixth cervicals), and moderate incomplete paralysis of the lower radicular group (involving the hand, wrist, and/or fingers). The examiner noted a private June 2017 EMG test revealed bilateral carpal tunnel syndrome. The Veteran reported he was a retired capitol police officer, but that he missed zero to one week of work in the last 12 months due to his right ulnar neuropathy. The examiner opined in a separate opinion document that the Veteran's right carpal tunnel syndrome began after the surgical treatment in 2005 to remove ulnar fragments from the right wrist fracture injury. The October 2020 VA examination report shows the examiner diagnosed right upper extremity radiculopathy, to include right ulnar neuropathy, and carpal tunnel syndrome. The examiner noted that the Veteran is left-handed. The examiner noted symptoms of moderate constant pain, paresthesias and/or dysesthesias, and numbness. Sensation in the right upper extremity was decreased. Testing for median nerve involvement showed Phalen's sign and Tinel's sign were both positive. The examiner opined that the degree of median nerve involvement was moderate incomplete paralysis, and that the degree of ulnar nerve involvement was moderate incomplete paralysis; however, the examiner opined the upper, middle, and lower radicular groups, however, were all normal. The examiner noted EMG testing suggested median neuropathies, right ulnar neuropathy, and cervical radiculopathies on differential, but noted that clinical correlation is recommended. Regarding the impact of the Veteran's right ulnar neuropathy on his occupational functioning, the examiner noted the Veteran had limitations in his ability to grip and lift. The Veteran submitted a disability benefits questionnaire (DBQ) from Dr. K.K. dated August 7, 2017. Dr K.K. noted diagnoses including cervical radiculopathy. The Veteran reported bilateral extremity weakness if he worked too long or lifted heavy objects. Moderate symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness were noted. Dr. K.K. opined that the overall severity of the Veteran's radiculopathy was moderate. Dr. K.K. noted that the nerve involvement was of the upper radicular group (C5/C6), and the middle radicular group. Regarding the effect of his disability on his occupational functioning, the examiner noted the Veteran is unable to lift greater than 10 pounds, stand greater than 15 minutes, or bend greater than five minutes (presumably the standing and bending are considering the radiculopathy in tandem with a cervical condition). The physician noted that the reduction of right arm function was suspected to be a combination of pathology of the right shoulder, carpal tunnel, ulnar neuropathy, and cervical radiculopathy. The Board has also reviewed all of the other medical evidence of record, which does not show symptoms more severe than that described in the examinations and DBQ above. Of note, a March 2014 EMG report characterized the Veteran's ulnar and median neuropathy as "mild." See Records, received August 20, 2015 at p.2 of 2. The Board has also carefully considered all of the lay statements of record, including but not limited to the statement by the Veteran's wife that the Veteran experiences chronic pain and numbness. See Statement, December 2014. The Board also acknowledges his wife's report in October 2017 regarding the Veteran experiencing wrist pain. There is little in the private or examination records relevant to specific functions of the right arm. The Veteran is able to lift up to 10 pounds but there are not reports of an inability to perform daily activities with the non-dominant arm such as an inability to drive an automobile. For the period prior to August 7, 2017, the Board finds the preponderance of the evidence is against finding that the criteria for a higher 40 percent rating under Diagnostic Code 8515 (for a minor extremity) have been met or approximated. The next higher rating criteria contemplate "severe" incomplete paralysis. However, as shown above, the Veteran's symptoms were noted by the August 2013 VA examiner to include "moderate" constant pain, "moderate" intermittent pain, "moderate" paresthesias and/or dysesthesias, and severe numbness. The ulnar nerve involvement was characterized as "moderate" overall as well. The examiner opined that the right ulnar neuropathy did not affect the Veteran's occupational functioning. The Board finds that this predominantly "moderate" symptomatology is already contemplated by the present 20 percent rating, which rating criteria contemplate "moderate" incomplete paralysis. The Board adds that here, where symptoms are wholly sensory, the rating schedule for diseases of peripheral nerves provides that the rating should be at most for the moderate degree. See 38 C.F.R. § 4.124a. For the period prior to August 7, 2017, the Board has considered whether the Veteran would be entitled to a higher rating under any other diagnostic code. The rating criteria under Diagnostic Code 8516, ulnar, are the same as Diagnostic Code 8515, such that a higher rating would not be warranted for the same reasons explained above. Because the Veteran's right ulnar neuropathy is rated under Diagnostic Code 8610, upper radicular group (fifth and sixth cervicals), neuritis, for the later period on appeal beginning on August 7, 2017, the Board has considered whether a higher rating would be warranted under that code for the period prior to August 7, 2017. As noted above, Diagnostic Code 8610 provides a higher 30 percent rating for "moderate" incomplete paralysis (for a minor extremity). The Board also acknowledges that the August 2013 VA examiner noted predominantly moderate symptoms. However, the August 2013 VA examination report specifically shows that examination of the "upper radicular group (fifth and sixth cervicals)" was "normal." Therefore, the Board finds that rating the ulnar neuropathy under Diagnostic Code 8610, upper radicular group (fifth and sixth cervicals), neuritis, for the period prior to August 7, 2017, would not be appropriate. For the period beginning on August 7, 2017, the Board finds that the weight of the evidence is against finding that the Veteran's right ulnar neuropathy (with cervical radiculopathy) disability meets or approximates the criteria for the next higher 40 percent schedular rating under Diagnostic Code 8610 (for a minor extremity). The 40 percent disability rating criteria contemplate "severe" incomplete paralysis. In this case, however, the Veteran's symptoms have been predominantly characterized as "moderate." The March 2019 VA examiner noted that the Veteran had symptoms of "moderate" constant pain, paresthesias and/or dysesthesias, and numbness, and only intermittent pain was noted as severe. The March 2019 VA examiner also noted "moderate" incomplete paralysis of the median nerve, "moderate" incomplete paralysis of the ulnar nerve, "moderate" incomplete paralysis of the upper radicular group, and "moderate" incomplete paralysis of the lower radicular group. The October 2020 VA examiner noted "moderate" symptoms of constant pain, paresthesias and/or dysesthesias, and numbness. None were noted as "severe." Only "moderate" incomplete paralysis of the median nerve and ulnar nerve was found on examination. Most notably, the October 2020 VA examiner noted that examination of the upper radicular group (fifth and sixth cervicals) was "normal." As noted above, the present 30 percent rating under Diagnostic Code 8610 contemplates moderate symptoms involving the upper radicular group. Also, where symptoms are wholly sensory, the rating schedule for diseases of peripheral nerves provides that the rating should be at most for the moderate degree. See 38 C.F.R. § 4.124a. While the Board acknowledges the lay statements by the Veteran's wife, and by his friend L.S., that the Veteran experiences extreme pain. Ultimately, the Board finds the level of severity of the Veteran's pain symptoms noted by the 2019 and 2020 VA examiners to be the most probative because those two reports are based on thorough examinations of the Veteran, and a history by him, and the reports provide far greater detail. The Board notes that clearly, the higher 30 percent rating was awarded based on the results of the private DBQ report dated August 7, 2017, which showed moderate cervical radiculopathy involving the upper radicular group was found. The Board notes again that service connection for the Veteran's cervical disability, and associated right upper extremity radiculopathy, was awarded effective August 7, 2017. Therefore, the Board concludes that entitlement to an initial rating in excess of 20 percent for the period prior to August 7, 2017, and in excess of 30 percent thereafter, is not warranted; as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to a compensable evaluation for a right wrist scar The Veteran's right wrist scar is currently assigned a noncompensable rating under Diagnostic Code 7805, effective October 5, 2005. The Veteran seeks a higher initial rating. See Rating decision, October 2015; NOD, April 2016; SOC, May 2017; Form 9, May 2017. The rating criteria for skin disabilities were amended effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). For claims pending during the effective date of the regulation change, the Board will apply the rating criteria most favorable to the veteran (except that the new regulation may not be applied to periods prior to the effective date of the change). See id. The Veteran's right wrist scar is rated under Diagnostic Code 7805, scars, other, which provides for evaluating the disabling effects of scars not considered by Diagnostic Codes 7800-7804 under an appropriate diagnostic code. This diagnostic code remains essentially unchanged after the August 2018 amendments. The service-connected scar relates to surgical treatment in 2005 following an in-service injury in 1979. See, e.g., Record, received January 13, 2006 (surgical report). A February 2009 VA examination report (joints) notes the Veteran's history of a right wrist injury in 1979, with subsequent surgical treatment in 2005. The examiner noted the Veteran had a 5cm scar on his right wrist that was stable, but "stiff and irritated." An August 2013 VA examination report (peripheral nerves) shows the examiner noted a well-healed scar on the right wrist measuring 6 x 0.25cm. The examiner noted the scar was not painful or unstable, and that the total area did not measure 39 square centimeters or greater. An April 2015 and October 2015 VA examination reports (wrist) show the examiners noted a right wrist scar measuring 6 x 1cm, and that it was not painful, unstable, or have a total area measuring 39 square centimeters or greater. The examiner noted it does not affect range of motion, had no abnormal findings such as keloid formation, and was superficial and linear. A March 2019 VA examination report (peripheral nerves) shows the examiner noted a right wrist scar measuring 7.2 x 01.cm. The examiner noted the scar was not painful or unstable, and that the total area did not measure 39 square centimeters or greater. An October 2020 VA examination report (carpal tunnel syndrome and ulnar neuropathy) shows examination revealed a right dorsal wrist scar measuring 7 x 0.2cm. The examiner noted the scar was not painful or unstable, and that the total area did not measure 39 square centimeters or greater. The Board has reviewed all of the other medical evidence of record. A December 18, 2008 treatment record notes that the scar was "irritable." See CAPRI, received April 2018 at p.96. For the entire period on appeal, the Board finds that the criteria for a compensable rating under Diagnostic Code 7805 for the Veteran's right wrist scar have not been met or approximated. As noted above, Diagnostic Code 7805, scars, other, provides for evaluating the disabling effects of scars not considered by Diagnostic Codes 7800-7804 under an appropriate diagnostic code. Diagnostic Code is essentially unchanged by the 2018 amendments. The evidence does not, however, show any disabling effects of the right wrist scar, including no limitation of motion. Therefore, a compensable rating under this code is not warranted. However, the Board finds that for the period prior to August 13, 2013, the criteria for a compensable rating under Diagnostic Code 7804 have been met. Diagnostic Code 7804, scars, unstable or painful, provides a 10 percent rating for one or two painful or unstable scars, 20 percent for three or four such scars, and 30 percent for five or more. This diagnostic code was not part of the 2018 amendments. As shown above, the December 2008 VA treatment record and the February 2009 VA examination report both show the scar was irritated. Therefore, the Board finds that a 10 percent rating as painful under Diagnostic Code 7804 is warranted for the period prior to August 13, 2013. For the period beginning on August 13, 2013, however, the criteria for a 10 percent rating under Diagnostic Code 7804 have not been met or approximated. The VA examination report dated August 13, 2013, and the April 2015, October 2015, March 2019, and October 2020 VA examination reports, all show the VA examiners noted that the scar was not painful or unstable. There is no other evidence of record for this period indicating that the scar was painful or unstable. Therefore, the evidence does show that there was improvement based on healing and on reports by the Veteran of no pain. The Board has considered whether the Veteran would be entitled to a compensable rating under any other diagnostic code at any time during the period on appeal (under the old and new criteria). The Board is also cognizant that, insofar as the 10 percent rating is granted herein under Diagnostic Code 7804 for the period prior to August 13, 2013, Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive a separate evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118. Diagnostic Code 7800, burn scars of the head, face, and neck, is not applicable because this scar is on the right wrist. Old and new Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, requires a scar area of at least six square inches for a compensable rating, which is not shown. Old and new Diagnostic Code 7802, burn scars not of the head, face, or neck, contemplates a scar area of at least 144 square inches, which is not shown. Therefore, in summary, the Board concludes that for the period prior to August 13, 2013, entitlement to a 10 percent rating for the right wrist scar is warranted; for the period beginning on August 13, 2013, entitlement to a compensable rating for the right wrist scar is not warranted. As the preponderance of the evidence is against assigning higher ratings, the benefit of the doubt rule is not for application. The Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for degenerative joint disease of the right shoulder (right shoulder disability) 2. Entitlement to an evaluation in excess of 20 percent for residuals of a right wrist fracture The Veteran seeks increased ratings for his service-connected right shoulder and right wrist fracture disabilities. See Forms 21-526, August 2011 and May 2015; Rating decisions, October 2013 and October 2015; NODs, October 2013 and April 2016; SOCs, May 2017 and February 2018. Regrettably, the Board finds a remand is necessary before a decision can be made on the claims. The Veteran was most recently afforded VA examinations in March 2019. The VA examiner noted pain with weight bearing, but did not note whether the ranges of motion provided were in weight bearing versus nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Also, the VA examiner noted that he was unable to opine whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time or during flare ups without resorting to mere speculation, but did not provide an adequate rationale. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) Therefore, the Board finds the claims should be remanded for new VA examinations to address the current nature and severity of the Veteran's right shoulder and right wrist fracture disabilities. The examiner should address whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time or during flare ups, and if so, such functional loss should be described, to the extent feasible, in terms of limitation of motion. The examination report should also include range of motion test results in active and passive, weight bearing and nonweight bearing. The matters are REMANDED for the following action: 1. Obtain new VA examinations to address the current severity of the Veteran's 1) right shoulder DJD disability, and 2) right wrist fracture disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has "considered all procurable and assembled data before stating that an opinion cannot be reached," and "that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large." The Board may "accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed." See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should also address the effect of the Veteran's right shoulder and right wrist fracture disabilities on his occupational functioning. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.