Citation Nr: 21010637 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-58 469A DATE: February 25, 2021 ORDER Entitlement to an increased disability evaluation for right upper extremity cubital tunnel syndrome, initially rated as 10 percent disabling, is denied. Entitlement to an increased disability evaluation for left upper extremity cubital tunnel syndrome, initially rated as 10 percent disabling, is denied. FINDINGS OF FACT 1. Right upper extremity cubital tunnel syndrome is manifested by mild incomplete paralysis of the minor ulnar nerve. 2. Left upper extremity cubital tunnel syndrome is manifested by mild incomplete paralysis of the major ulnar nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right upper extremity cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8516 (2019). 2. The criteria for a disability rating in excess of 10 percent for left upper extremity cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8516 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1991 to February 1994 and from March 1995 to September 2014. This matter comes before the Board of Veterans’ Appeals (Board or BVA) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The March 2015 rating decision, in pertinent part, granted the Veteran’s claim of entitlement to service connection for right and left upper extremity cubital tunnel syndrome and assigned a noncompensable disability evaluation for each upper extremity, effective October 1, 2014. The Veteran testified before the undersigned Veterans Law Judge at a May 2018 videoconference hearing. A transcript of the hearing has been associated with the record. The Veteran’s claims were previously before the Board in February 2019 and June 2020, wherein the Veteran’s claims were remanded for additional development and due process considerations. A supplemental statement of the case on these issues was most recently issued in August 2020. In a March 2020 rating decision, the RO granted an increased 10 percent disability evaluation, per extremity, for the Veteran’s service-connected right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome; an effective date of October 1, 2014 was assigned. As the grants do not represent a full grant of benefits sought on appeal, the increased rating claims for right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for right upper extremity cubital tunnel syndrome, initially rated as 10 percent disabling. 2. Entitlement to an increased disability evaluation for left upper extremity cubital tunnel syndrome, initially rated as 10 percent disabling. The Veteran is assigned a 10 percent disability rating, per upper extremity, for her service-connected right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome in accordance with the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8516. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 8516, for the major ulnar nerve, a 10 percent evaluation is assigned for mild incomplete paralysis; a 30 percent rating requires moderate incomplete paralysis; and a 40 percent rating requires severe incomplete paralysis. A 60 percent disability rating requires complete paralysis with the “griffin claim” 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); flexion of wrist weakened. See 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under Diagnostic Code 8516, for the minor ulnar nerve, a 10 percent rating requires mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis. A 30 percent rating requires severe incomplete paralysis. A 50 percent disability rating requires complete paralysis requires complete paralysis with the “griffin claim” 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); flexion of wrist weakened. See 38 C.F.R. § 4.124a, Diagnostic Code 8516. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). The Veteran contends that higher disability ratings are warranted for her right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome. The Veteran is right-hand dominant. This was confirmed in the September 2019 VA examination report. After a review of the evidence, the Board finds that for the entire rating period on appeal the Veteran’s service-connected right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome more nearly approximates the criteria for the currently assigned 10 percent disability rating for each upper extremity for the rating period on appeal. The Veteran’s right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome has been characterized by no more than mild incomplete paralysis of the ulnar nerve. According to the February 2015 VA examination report, the Veteran reported experiencing upper extremity pain, but a peripheral nerves evaluation of her upper extremities was normal, including normal muscle strength and deep tendon reflexes; range of motion of the elbows was also normal. At the more recent September 2019 VA examination, the Veteran’s deep tendon reflexes were 2+ bilaterally, and sensory examination of the upper extremities was normal. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the upper extremities. The Board acknowledges that the Veteran complained of symptoms at this examination, but points out that she had full grip strength and objective manifestations did not show that the Veteran has moderate or severe incomplete paralysis of the ulnar nerve of either upper extremity. Therefore, her symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation, per upper extremity, for mild incomplete paralysis of the ulnar nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. As such, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent, per upper extremity, for right upper extremity cubital tunnel syndrome and left upper extremity cubital tunnel syndrome, for the entire appeal period. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.