Citation Nr: 21012265 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-56 688 DATE: March 3, 2021 ORDER An initial rating of 40 percent for neurogenic thoracic outlet syndrome associated with left shoulder residuals (herein left thoracic outlet syndrome) is granted. REMANDED An initial disability rating in excess of 40 percent for left thoracic outlet syndrome. A total disability rating based on individual unemployability (TDIU).   FINDING OF FACT The Veteran’s left thoracic outlet syndrome was manifested by at least severe incomplete paralysis. CONCLUSION OF LAW The criteria for at least an initial 40 percent rating for left thoracic outlet syndrome have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8511. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to November 1979. The case is on appeal from a March 2016 rating decision. In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. An initial rating in excess of 30 percent for left thoracic outlet syndrome. Background and Legal Criteria In the March 2016 rating decision, the RO granted service connection for left thoracic outlet syndrome and assigned a 30 percent rating, effective November 30, 2015, under DC 8511. Paralysis of the middle radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8511. Under these criteria, mild incomplete paralysis is rated as 20 percent for the minor extremity. Moderate incomplete paralysis is rated as 30 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the minor extremity. Complete paralysis is rated as 60 percent for the minor extremity. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. Analysis The Veteran has been afforded one VA examination for this disability during his increased rating appeal in February 2016 and a Peripheral Nerves Conditions DBQ was completed. Symptoms were noted of severe left upper extremity intermittent pain (usually dull), severe numbness and severe paresthesias and/or dysesthesias. Muscle strength testing showed decreased strength (noted as 4/5 for active movement against some resistance) for left elbow flexion and extension, left wrist flexion and extension, left grip and left pinch (thumb to index finger). Reflex examination showed impaired deep tendon reflexes (noted as 1+ for hypoactive) for the left biceps, triceps and brachioradialis. Sensory examination showed decreased sensation testing for light touch for the left shoulder area (C5), the left inner/outer forearm (C6/T1) and the left hand/fingers (C6-8). It was noted that there was severe incomplete paralysis of the Veteran’s left ulnar nerve and severe incomplete paralysis of the left middle radicular group. It was also noted that the Veteran’s disability impacted his ability to work, specifically that “it is hard to hold or grasp things, especially during flare ups.” Upon review, the Board finds that the Veteran’s left thoracic outlet syndrome was manifested by at least severe incomplete paralysis. As such, the Board concludes that the criteria for at least an initial 40 percent rating for left thoracic outlet syndrome have been met. 38 C.F.R. § 4.124a, DC 8511. The Board is proceeding with this intermediary grant of benefits to the Veteran. The remaining issue on appeal becomes entitlement to a rating in excess of 40 percent, which is addressed further in the remand section below. The Veteran is not prejudiced by this intermediary action as it is a grant of benefits without any denial of greater benefits. REASONS FOR REMAND 1. An initial rating in excess of 40 percent for left thoracic outlet syndrome. As discussed above, the Veteran was last afforded a VA examination for his left thoracic outlet syndrome in February 2016 and the Board has granted an initial 40 percent rating for this disability. At the February 2021 Board hearing, it was argued that the Veteran’s disability picture may approximate complete paralysis, which would warrant a higher rating under DC 8511. The February 2016 DBQ specifically noted incomplete paralysis, and not complete paralysis, of the left ulnar nerve and left middle radicular group. In review, the most recent VA examination was more than five years ago and there is an indication of worsening of the Veteran’s disability since that time. As such, the Board finds that remand is warranted to afford the Veteran a new VA examination to determine the current severity of his left thoracic outlet syndrome. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran is advised that he should inform VA if he has received VA medical treatment. Currently, no VA treatment records are of record. It is not clear from the record that the Veteran has received VA treatment, but a June 2015 private medical record from Dr. M.H. stated that the Veteran “has evidently been seen at the VA.” 2. A TDIU. The Board finds that the issue of a TDIU was raised at the Board hearing as part and parcel of the left thoracic outlet syndrome increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also finds that the TDIU claim is inextricably intertwined at this time with the left thoracic outlet syndrome increased rating claim being remanded and that accordingly remand of the TDIU claim is also warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, the RO did not directly adjudicate the issue of entitlement to a TDIU and, therefore, any appropriate development related to this issue has not been conducted. As such, while on remand, the RO should undertake any development it may deem appropriate in regard to the Veteran’s TDIU claim, to include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU and requesting that he complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current severity of his left thoracic outlet syndrome. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.