Citation Nr: 21010422 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-53 822 DATE: February 24, 2021 ORDER Entitlement to a disability rating of 30 percent, but no higher, for right upper extremity neuropathy from January 31, 2016, is granted. FINDING OF FACT From January 31, 2016, the evidence of record is in relative equipoise as to whether his right upper extremity neuropathy symptoms more reasonably approximated as moderate incomplete paralysis. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for right upper extremity neuropathy from January 31, 2016, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.123, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1996 to February 1999. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Because that VLJ retired, the Veteran was notified in November 2020 of his right to testify before another VLJ prior to the Board deciding his appeal; however, the Veteran declined this option. Also, the Veteran’s claims were previously remanded by the Board in December 2019 for further development to include a new VA examination. Moreover, the Board decision also dismissed the Veteran’s claim for a rating in excess of 10 percent prior to January 31, 2016. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Prior to adjudication of the Veteran’s claim, the Board notes the following: The Veteran was granted service connection for right upper extremity neuropathy and assigned a non-compensable disability rating in an April 10, 2015 rating decision and that rating was continued in a May 28, 2015 rating decision. Neither decision indicates whether service connection of the Veteran’s rating was for his dominant or non-dominant extremity. However, the April 13, 2016 rating decision that granted a 10 percent disability rating granted the rating based on his neuropathy affecting his minor extremity. This was incorrect. Indeed, the same rating decision awarded service connection separately for the right wrist sprain as “dominant”; and on all VA examinations conducted, the Veteran’s major extremity has been his right extremity. Although the Veteran has not been prejudiced by this error prior to this decision, this distinction is important to correct prior to the adjudication of his claim. The Veteran seeks a disability rating in excess of 10 percent from January 31, 2016 for his right upper extremity neuropathy. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.124a, diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. 38 C.F.R. § 4.6. The use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's service-connected right upper extremity neuropathy (major) is rated by VA under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8516. From January 31, 2016 he is in receipt of a 10 percent disability rating for mild incomplete paralysis of the ulnar nerve. A 30 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve and a 40 percent rating is warranted for severe incomplete paralysis of the ulnar nerve. Turning to the evidence of record, a March 2016 VA peripheral nerves examination report included a review of the claims file, a recitation of complaints and medical history, and physical examination results. He subjectively reported the following symptoms: The condition has worsened due to increased level of pain and worsened numbness and burning.” The report determined he did not experience constant pain, but had severe intermittent pain and mild paresthesias and/or dysesthesias and numbness. The report also determined he did not experience any muscular atrophy. However, the report noted he experienced decreased sensitivity in his hand/fingers and his ulnar nerve was diagnosed with mild incomplete paralysis. Lastly, the Veteran stated that he utilized a wrist brace. Based in part on this examination, the Veteran was granted a 10 percent disability rating, effective January 31, 2016, in an April 2016 rating decision. In an August 2019 letter to the Board, the Veteran’s VA physician, Dr. S.B. stated his neuropathy has progressed to moderate incomplete paralysis of the ulnar nerve. Specifically, Dr. S.B. wrote: The Veteran is right hand dominant…his condition and the symptoms associated have a tendency to affect his ability grasping and performing precise tasks, particularly work and school, such as writing and typing. Thus, it is in my professional medical opinion that his ulnar neuropathy symptoms are more likely than not closely approximating moderate incomplete paralysis. An October 2019 VA treatment record indicates the Veteran subjectively reported increasing symptoms of neuropathy with difficulty performing writing tasks. A January 2020 VA peripheral nerves examination report included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The Veteran subjectively reported the following symptoms: Pain and swelling, intermittent pain/swelling/numbness/tingling in his ring and pinky finger and along the edge of his right (dominant) hand that radiates from his right elbow/forearm happening a lot more frequently and particularly with certain movement and/or when his arm is in certain positions. Right hand weakness. The Veteran also subjectively reported the following functional limitations: His ability to write and type at school and work, talk on the phone, get dressed, brush his teeth, sleep comfortably, drive comfortably, workout/lift weights, etc. He has also noticed that he drops and/or almost drops things a lot more often. The report determined he experienced moderate intermittent pain, mild paresthesias and/or dysesthesias and numbness. The report determined he did not experience any muscular atrophy. However, the report noted he experienced decreased sensitivity in his hand/fingers and his ulnar nerve was diagnosed with mild incomplete paralysis. Lastly, it was determined he no longer used a wrist brace. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that granting all reasonable doubt to the Veteran, his upper extremity neuropathy manifested as moderate incomplete paralysis from January 31, 2016 to the present. Here, the Board recognizes there is a balance of positive and negative evidence. The Board acknowledges a March 2016 VA peripheral nerves examination report, in which the examiner found mild incomplete paralysis overall but had severe intermittent pain; and the January 2020 VA report, which determined his neuropathy only manifested as mild but also noted moderate intermittent pain along mild paresthesias and/or dysesthesias and numbness. This evidence represents as mixed symptomatology picture. The August 2019 letter from the Veteran’s VA physician, however, specifically indicates the overall neuropathy was manifested by moderate incomplete paralysis. As such, considering the Veteran is treated by his VA physician on a regular basis, the Board finds that after granting reasonable doubt to the Veteran, the treating physicians characterizations carry more weight than the findings of VA examinations conducted in March 2016 and January 2020. Accordingly, affording all reasonable doubt to the Veteran, the Board finds his right upper extremity neuropathy more reasonably approximated as moderate incomplete paralysis from January 31, 2016. Hence, the benefit of the doubt rule applies. Id. To the extent that a higher rating is sought, the preponderance of the evidence is against the claim and the benefit of the doubt rule would not apply. Id. Accordingly, the Veteran’s claim of entitlement to a 30 percent disability rating, but no higher, for right upper extremity neuropathy, from January 31, 2016, is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.