Citation Nr: 21014668 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-32 601 DATE: March 15, 2021 ORDER For the entire rating period on appeal, a 50 percent rating for chronic inflammation of the nerve root, upper right extremity, is granted. For the rating period on appeal prior to August 29, 2014, a 40 percent rating, but not higher, for chronic inflammation of the nerve root, upper left extremity, is granted. For the rating period on appeal from July 1, 2015, a 40 percent rating for chronic inflammation of the nerve root, upper left extremity, is granted. REMANDED Entitlement to a rating in excess of 50 percent for chronic inflammation of the nerve root, upper right extremity, is remanded. Entitlement to a rating in excess of 40 percent for chronic inflammation of the nerve root, upper left extremity, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, for the entire rating period on appeal, his chronic inflammation of the nerve root, upper right extremity, approximates severe incomplete paralysis. 2. Resolving any reasonable doubt in the Veteran’s favor, for the period on appeal prior to August 29, 2014, his chronic inflammation of the nerve root, upper left extremity, approximated severe incomplete paralysis. 3. For the rating period on appeal from August 29, 2014 to July 1, 2015, the Veteran was in receipt of a temporary total (100 percent rating) for a left elbow surgery requiring a period of convalescence. 4. Resolving any reasonable doubt in the Veteran’s favor, for the period on appeal from July 1, 2015, his chronic inflammation of the nerve root, upper left extremity, approximated severe incomplete paralysis. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 50 percent rating for chronic inflammation of the nerve root, upper right extremity are met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515 (2020). 2. For the entire period on appeal, the criteria for a 40 percent rating for chronic inflammation of the nerve root, upper left extremity are met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from November 1999 to November 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2018, the Board remanded the issues of entitlement to a rating in excess of 30 percent for chronic inflammation of the nerve root, upper right extremity, and entitlement to a rating in excess of 20 percent for chronic inflammation of the nerve root, upper left extremity to afford the Veteran a new VA examination to ascertain the severity of his symptoms for these disabilities. The examination was conducted in March 2019 and a copy of the examination report has been associated with the electronic claims file. Thereafter, the RO denied the increased rating claims as well as entitlement to a TDIU. See Supplemental Statement of the Case dated May 16, 2019. The appeal was returned to the Board, and in July 2019, the Board denied the increased rating claims and remanded the issue of entitlement to a TDIU for issuance of a Statement of the Case (SOC). See Board Decision and Remand dated July 19, 2019. The RO issued an SOC in April 2020 denying entitlement to a TDIU. The Veteran appealed the Board’s July 2019 denial of the increased rating claims to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the increased rating issues. See Court Order dated September 11, 2020. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by not providing an adequate statement of reasons or bases for its decision in that it failed to address the ameliorative effects of medication, favorable evidence of swelling, pain, and severe numbness associated with the Veteran’s upper extremities chronic nerve inflammation, and whether a higher rating is warranted under Diagnostic Code 8510. See Joint Motion for Partial Remand dated September 4, 2020 at pgs. 1-2. Pursuant to the JMPR, the Board sent the Veteran notice that he could submit additional evidence and argument in support of his appeal before the Board would proceed with readjudication. See Board letter dated October 1, 2020. To date, no additional evidence or argument has been submitted. Representation Through the pendency of the Veteran’s claims, he has appointed three different representatives: Veterans of Foreign Wars of the United States (VFW), then attorney P.J. Meadows only in regard to the TDIU claim, then the Arizona Department of Veterans Services, the appointment of which is reflected in the power of attorney form (VA Form 21-22) received by VA in October 2020 granting powers of attorney for all claims. The Board notes that correspondence from Mr. Meadows in November 2020 declaring his withdrawal from representation does not satisfy the requirements of 38 C.F.R. § 20.6(a) (2020) (withdrawal of services of a representative). Nevertheless, as the power of attorney for Mr. Meadows indicates revocation effective upon the Veteran’s appointment of a different representative, Mr. Meadows’ representation was terminated upon the appointment of VFW, and the necessity of a formal withdrawal is therefore moot. Increased Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (also abbreviated “DC”), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 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. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). The assignment of a particular DC is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 137. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Analysis In a September 2004 rating decision, the RO granted service connection and assigned initial ratings of 30 percent for chronic inflammation of the nerve root, upper right extremity, and 20 percent for chronic inflammation of the nerve root, upper left extremity on the basis of evidence of neuralgia and sensory dysfunction of a moderate nature without electromyography (EMG) and nerve conduction study findings. 38 C.F.R. § 4.124a, DC 8515; Rating Decision dated September 24, 2004. In September 2015, a temporary total rating was assigned for chronic inflammation of the nerve root, upper left extremity based on surgical treatment necessitating convalescence, effective August 29, 2014 to July 1, 2015, and granted service connection for a residual surgical scar, assigning a noncompensable evaluation. See 38 C.F.R. § 4.118, DC 7805; Rating Decision dated September 29, 2015. (2018). The Veteran claims that higher ratings for chronic inflammation of the nerve root, upper right extremity, and for chronic inflammation of the nerve root, upper left extremity, are warranted. Under DC 8515, moderate incomplete paralysis warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Severe incomplete paralysis warrants a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Complete paralysis warrants a 70 percent rating for major upper extremity and a 60 percent rating for the minor upper extremity. Complete paralysis is manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and/or pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence 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. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Turning to the record, an examination report by private physician E.P., M.D. reflects that the Veteran reported that his right hand was always slightly more “puffy” than the left one and he was given antibiotics every several months for bad exacerbations. The Veteran reported that his condition had been stable for two and a half years, but that for the past six months his hands had been more swollen. On examination the tone and bulk were symmetric except for the right hand being slightly edematous. There was no discoloration on either hand. The right upper extremity strength was described as “full.” There was 4+/5 weakness on the left biceps, triceps, and left-hand grip. There was subtle blunting during pin prick testing of the upper extremities, bilaterally. The diagnosis was history of neuropathy/neuropathic pain (neuritis) in both upper extremities. See Correspondence from E.P., M.D. dated April 14, 2010. During a June 2010 VA outpatient appointment, the Veteran reported that his “hands and arms have decreased mobility and strength.” He reported chronic pain in his bilateral hands and arms, aggravated by lifting. During this period the Veteran was prescribed Diclofenac and 800 mg Ibuprofen for pain and inflammation. During a VA examination in August 2010, the Veteran reported that he received no current treatments for his upper extremity nerve conditions. The diagnosis was chronic inflammation of the right and left upper extremity nerve roots. On examination, reflex testing was normal, bilaterally. Decreased vibration sensation of the right upper extremity and right thumb, and decreased pin prick sensation of the left upper extremity and left thumb were evident during sensory testing. Position sense and light touch were normal, and the Veteran was negative for dysesthesias. Decreased motor activity was indicated in the right thumb. It was noted that EMG testing of the upper extremities was normal. The Veteran reported that he was employed full time as a turbine mechanic. See VA Peripheral Nerves examination report dated August 12, 2010. During an August 2010 VA outpatient appointment, the Veteran reported worsening right elbow pain as well as swelling of his hands and weak grasp, bilaterally. In late August 2010, the Veteran underwent a VA physical therapy consultation, during which he reported pain, numbness, and tingling in both hands, mostly in the fourth and fifth digits, bilaterally. The Veteran also endorsed right elbow numbness and tingling. The Veteran reported that pain in his hands interfered with gripping motion, reaching, and moving his fingers, which caused increased pain. On examination, there was no tenderness to palpation at the triceps, wrist extensors, or lateral epicondyle. Hand grip strength using a dynamometer was 105 pounds for the right hand, and 120 pounds for the left hand. Pinch testing revealed 19 pounds for the right hand, and 21 pounds for the left hand. The physical therapist observed abnormal range of motion throughout the bilateral upper extremities. Wrist flexion with elbows locked was 70 degrees, bilaterally, and wrist extension was 70 degrees, bilaterally. It was noted that the numbness and tingling were caused by paresthesias, bilaterally, which affected both hands and most fingers. The assessment was decreased right hand grip strength. In a statement dated May 2011, the Veteran said medications prescribed for his upper extremity symptoms was not effective. Private outpatient treatment notes dated July 2011 reflect that the Veteran had left side upper extremity weakness with grip and foot pressure resistance. During a January 2012 VA pain consultation, the diagnosis was upper extremity radiculopathy possibly from anthrax. The Veteran was taking the medications Gabapentin, Diclofenac, Oxycontin, Carisoprodol, and Duloxetine. It was noted that the Veteran worked for an energy company, which required manual labor and lifting. It was noted that the Veteran was prescribed Oxycodone, Diclofenac, Gabapentin, Methocarbamol for pain and inflammation. The Veteran attended a VA neurology consultation in March 2012, endorsing pain in between the lateral aspect of his left arm between the inferior arm and the superior forearm, which he described as a “knife burn” pain, aggravated by movement. He also endorsed decreased sensation in the entire left hand including all fingers and reported left elbow weakness during flexion. Additionally, the Veteran reported intermittent, bilateral hand swelling primarily located in the base of the radial side of each palm. He denied joint welling and erythema. On examination, there was severe pain with resisted wrists extension and with pronated/extended elbow. There was no intrinsic hand muscle atrophy. The upper extremity muscles were well developed and symmetric in strength and reflexes, bilaterally, and muscle tone was normal. EMG testing of the upper extremities was normal. Sensory examination revealed reduced sensation in the entire left hand and forearm; however, sensation was intact to light touch, pinprick, and vibration. There was no clinical or electrographic evidence of neuropathy or radiculopathy. It was noted that the Veteran had typical signs of lateral epicondylitis. The Veteran was advised to avoid all repetitive activity of the arm, including elbow extension and flexion, wrist extension and flexion, and supination and pronation. June 2012 VA neurosurgery consultation notes reflect that the Veteran was experiencing increased chronic pain and spasms of the left medial epicondyle. MRI imagery indicated a normal cervical spine. A November 2012 VA memorandum reflects that a VA physician declined to endorse prescribing Oxycontin for the Veteran, at his request, and instead suggested that referral to a VA pain management clinic was the better option. July 2013 VA EMG consultation notes reflect that the Veteran reported left elbow pain upon any movement as well as left arm weakness and loss of strength in his left hand. On examination, strength was noted as 4/5 in the left finger abductors and the flexors/extensors of the left wrist, and 5/5 in all other upper extremity muscles, bilaterally. There was diminished sensation in the upper extremities, bilaterally. There was no electrodiagnostic evidence of peripheral motor or sensory neuropathy. However, there was a strong suspicion and likelihood of a lateral and medial epicondylitis of the left elbow. During a VA neurology consultation in January 2014, the Veteran reported continuing left upper extremity pain, that his left elbow pain remained unchanged, and that he had been experiencing right elbow pain since the previous September. On examination, muscle bulk and tone were normal, and he was negative for muscle atrophy. There was extensive tenderness to palpation distal to the lateral and medial condyle, bilaterally. There was a positive chair test, bilaterally. Upper extremity strength was normal, bilaterally. Sensation was reduced in the left and right fourth and fifth digits. Reflexes were normal. The physician noted that there was no clinical or electrophysiological evidence to suggest neuropathy and no MRI or EMG evidence of radiculopathy, but findings suggested possible lateral epicondylitis, although she noted that she found no evidence of a neurologic cause for his pain. During an April 2014 VA outpatient appointment, the Veteran complained of numbness and tingling in the fourth and fifth digits of his right hand as well as pain in the left elbow. Sensory testing of the right ulnar nerve revealed decreased amplitude approximating one third of the number of functioning fibers compared to the left side; sensory testing of the left ulnar nerve was normal. However, there was significant slowing of conduction of greater than 11 milliseconds across the left elbow. The impression was moderate right ulnar sensory neuropathy and left ulnar neuropathy at the elbow of mild to moderate severity. May 2014 VA outpatient notes show that the Veteran complained of chronic numbness in the right ring and small fingers, bilaterally, and pain in the left cubital area, bilaterally. It was noted that he had a diagnosis of CRPS, which “waxes and wanes.” It was noted that the Veteran’s right ulnar nerve easily subluxed from the ulnar groove with slight pressure and that electrodiagnostic findings would not necessarily reflect this clinical finding.” The Veteran’s symptoms were characterized as a “complex case.” The diagnosis was ulnar neuropathy, bilateral, worse on the right than left. Contemporaneous records reflect that the Veteran was prescribed Oxycodone (non-VA prescription), Prednisone, Diclofenac, and Gabapentin for pain and inflammation. During a VA examination in June 2014, the diagnosis was neuropathy. The examiner noted that the Veteran’s right hand was dominant. EMG studies of the right and left upper extremities were abnormal, indicating bilateral ulnar neuropathy; although no paralysis was indicated in the median and ulnar nerves, bilaterally. Veteran reported symptoms of constant “moderate” pain of the right upper extremities; constant “severe” pain of the left upper extremities; “Moderate” paresthesias and/or dysesthesias of the right upper extremities; “Severe” paresthesias and/or dysesthesias of the left upper extremities; and “Severe” numbness of right and left upper extremities. Muscle strength and reflex testing was normal, bilaterally. The Veteran was negative for muscle atrophy. Sensory testing revealed decreased hand/fingers sensation, bilaterally. The examiner noted that the Veteran used no assistive devices. Regarding the functional impact of the Veteran’s bilateral upper extremities disabilities, the examiner noted that the Veteran was unable to use his hands to work because of pain, poor mobility, and spasms. In August 2014, the Veteran underwent surgery for left cubital tunnel release with sub fascial transposition of the ulnar nerve. During a follow up appointment in September 2014, the Veteran’s left elbow incision was well healed. He reported pain when raising his left arm due to pain, and weakness and pain from his left elbow to shoulder. He described shooting pain from the location of the surgical incision to the back of his upper left arm around the triceps muscle. There was pain with all movement of his left hand, including thumb opposition and abduction, and intrinsic musculature pain involving the ulnar and median nerve distribution. A September 2014 VA pharmacy note indicates the Veteran had an active prescription for Morphine. By November 2014, VA outpatient records reflect that the Veteran complained of increasing bilateral upper extremity pain and requested a prescription for Roxicodone. However, a VA pain medication review Board denied the request. Private treatment records dated March 2015 show that surgery on the Veteran’s left ulnar nerve was again being considered. The private surgeon consulted with a VA surgeon regarding the possible failure of the 2014 left ulnar nerve surgery, and the need for additional surgery. In April 2015, VA approved the procedure to be done by the private surgeon. Later that month, the Veteran underwent a second left ulnar surgery. The private surgeon noted the Veteran had developed “persistent numbness and weakness” in his left hand, which demonstrated persistent neuritis of the ulnar nerve. The surgical procedure was described as a redo of the left ulnar release with neurolysis and reconstruction of subcutaneous transposition. However, by May 2015, the Veteran was again reporting constant moderate to severe upper extremity aching and pain in his left elbow and hand, which worsened with activity. VA medical records for 2016 reflect only prescription medication refills in August 2016 and notations in October 2016 regarding the scheduling of future appointments. A May 2017 VA outpatient record reflects that the Veteran’s extremities were negative for clubbing, cyanosis and edema. Some joint edema, erythema, and tenderness was noted over both hands and wrists. A metacarpal squeeze test was positive, bilaterally, more evident on the left than the right. The assessment was chronic pain syndrome on high dose opiate treatment. During July 2017 VA outpatient appointments, the Veteran reported continuing pain over the ulnar and radial distributions of the bilateral upper extremities, described as a “burning, shocking” pain. He also described continuing pain, tingling, swelling, redness, and pressure in his upper extremities, bilaterally, including his hands, which worsened with activity. The Veteran was taking Oxycodone. On examination, it was noted that his skin appeared normal, but was peeling off the palmar surfaces of both hands and his veins in both hands were prominent. There was decreased sensation to light touch in the ulnar regions, bilaterally, a slight decrease in median territory, bilaterally, and normal sensation in the radial regions. The assessment was unusual syndrome of vasomotor instability in all extremities and bilateral upper extremity pain. A January 2018 VA MRI of the cervical spine revealed no significant cervical spine or cervical cord abnormality. The Veteran complained of intermittent right wrist pain, which he said he has been experiencing for five years and progressively worsened over the previous six months. On examination there was no edema, but mild tenderness to palpation was noted over the dorsal surface of the right wrist on the ulnar side. Tinel’s test was negative. Phalen’s test revealed focal discomfort in the right wrist, with radiation into the fourth and fifth digits of the right hand. A September 2018 VA outpatient record notes that the Veteran had bilateral upper extremity CRPS, and that he received some pain relief from taking Oxycodone, however the duration of relief was not long enough. He was also taking Morphine, which was noted as not providing sufficient pain relief. Past medications were characterized as therapeutic failures. Tapentadol was recommended as a replacement for Morphine. VA treatment notes dated November 2018 reflect that a trial prescription of Lidocaine patches was approved for treatment of the Veteran’s bilateral upper extremities symptoms. During a VA prescription medication review in January 2019, it was noted that the Veteran was taking Oxycodone, Diclofenac, and Tapentadol, and using Lidocaine patches. A July 2019 private “Independent Disability Evaluation” submitted in support of the Veteran’s claim for entitlement to a TDIU reflects that the Veteran suffers from constant, chronic nerve pain in both arms and extreme swelling that immobilizes his hands and fingers. The Veteran underwent a VA examination in March 2019, reflecting diagnoses of chronic inflammation of the nerve roots of the right and left upper extremities. It was noted that the Veteran’s right hand was his dominant hand. The Veteran reported that after 30 minutes of use, his hands swell up like balloons and the swelling does not subside for hours. He said he experienced constant “severe” pain in his right and left upper extremities; “Moderate” paresthesias and/or dysesthesias of his right and left upper extremities; and “Severe” numbness of the right and left upper extremities. The Veteran denied using assistive devices. On examination, the Veteran had diminished muscle strength bilaterally during elbow flexion, elbow extension, wrist flexion, wrist extension, grip, and pinch (thumb to finger). He was negative for muscle atrophy. His reflexes were normal. However, decreased sensation was noted bilaterally at the inner/outer forearm and hand/fingers. There were no trophic changes and his gait was normal. Phalen’s sign and Tinel’s sign were positive, bilaterally. The examiner concluded that the Veteran had “mild” incomplete paralysis of the right median nerve; “moderate” incomplete paralysis of the left median nerve; “moderate” incomplete paralysis of the right ulnar nerve; and “moderate” incomplete paralysis of the left ulnar nerve. The examiner noted a scar related to prior conditions/treatment at the Veteran’s left elbow measuring 10 cm x 0.5 cm, but not painful or unstable and not covering a total area equal to or greater than 39 square cm (6 square inches). The examiner described the functional impact of the Veteran’s upper extremity disabilities as numbness and burning type pain “prevent him from grasping items and after 30 min[ute]s of use with his hands they swell up like balloons and require hours to reduce.” See VA Peripheral Nerves examination report dated March 1, 2019. VA outpatient treatment notes dated March 2019 reflect that the Veteran reported that he was having more left arm pain and wanted to discuss whether additional left ulnar nerve surgery was needed. April 2019 VA treatment notes show that the Veteran reported that his pain was stable, despite working and moving. He noted that cold increased his left thumb pain. He also described increased pain upon awakening. He was concerned about vascular issues with his hands. He was having more left arm pain. The assessment was bilateral ulnar and radial nerve neuropathy with bilateral CRPS. VA x-rays of the Veteran’s right elbow in May 2019 revealed mineralization was normal. Osseous structures appeared intact. There was no significant joint space narrowing or osteophyte formation, and no joint effusion. The impression was that no significant abnormality was indicated. It was noted that an orthopedic consultation would be requested to evaluate the Veteran’s right ulnar nerve symptoms. During a VA outpatient visit in June 2019, the Veteran had normal range of motion and tone in all extremities. Right hand swelling was noted, but there were no color or temperature changes. The physician noted a healed left medial elbow scar. Tinel’s sign was positive at the bilateral medial elbows. Motor testing was 4+/5 at the bilateral upper extremities. Sensory testing was impaired to pin prick in the bilateral upper extremities to both wrists. Muscle stretch reflexes were normal at the biceps, triceps, and brachioradialis, bilaterally. The assessment was bilateral ulnar neuropathies status post two release procedures on the left. VA treatment notes dated March 2020 show that the Veteran continued to have bilateral upper extremity pain (burning, electrical) greater on the left than on the right. It was noted that the Veteran had undergone two ulnar nerve release surgeries without benefit. He also continued to have symptoms of vasomotor and edema in addition to the pain, which was consistent with CRPS. Regarding medication, it was noted that he was getting some benefit from Morphine and Oxycodone. In March 2020, the Veteran discussed surgical implantation of a cervical spinal cord stimulator (SCS) for treatment of upper extremity nerve pain, and that by April 2020 he was scheduled to have an SCS implant procedure outside the VA system. See VA orthopedic surgery note dated August 14, 2019; VA primary care note dated March 16, 2020; VA pain medicine note dated April 1, 2020. The most recent VA treatment records are dated April 2020 and there are no private treatment records dated after April 2015, as discussed in the remand section below. On review, the Board finds that the evidence is in equipoise as to whether there is severe incomplete paralysis of the Veteran’s median nerve roots of the upper right and left extremities. When the involvement is wholly sensory, the rating should be for mild, or at most the moderate degree. While the evidence shows that the sensory symptoms were often mild or moderate (paresthesia, numbness, pain) it also shows that the Veteran’s symptoms were not wholly sensory. A review of the record indicates the Veteran’s right and left upper extremity symptoms included chronic and severe numbness, muscle spasm, weakness, swelling, stiffness and vasomotor effects that limited mobility, especially finger mobility, bilaterally, and, regarding left upper extremity symptoms, two surgeries failed to relieve these impairments, and what relief the Veteran did obtain appears to have been derived from medication. Indeed, the record demonstrates that what upper extremities function the Veteran has been physically capable of throughout the pendency of the claim has been possible because he has, throughout the entire rating period, continually taken multiple prescribed medications, including narcotic and opiod medications such as Morphine, Oxycodone, and Tapentadol, for pain and inflammation. Even with this continuing regimen of strong anti-inflammatories and pain killers, in 2018 the Veteran’s past medications were characterized as “therapeutic failures” and by March 2020, the Veteran was considering surgical implantation of a SCS device for treatment of upper extremity nerve pain. The May 2014 VA outpatient treatment record is telling in that it characterized the Veteran’s disabilities as a “complex case” and acknowledged that the clinical findings do not necessarily reflect the severity of the Veteran’s symptoms. This has been the general state of the Veteran’s symptoms throughout the rating period, causing significant functional limitations, including an inability to pick up or grasp objects, which is essential in his work as an, e.g., mechanic or truck driver. Thus, resolving reasonable doubt in the Veteran’s favor, a 50 percent rating is warranted for the Veteran’s chronic inflammation of the nerve root, upper right extremity, and a 40 percent rating is warranted for chronic inflammation of the nerve root, upper left extremity, for the entire rating period, with the exception of the period from August 29, 2014 to July 1, 2015, for which the Veteran was granted a total temporary rating for post-surgical convalescence associated with the surgery for left cubital tunnel release with sub fascial transposition of the ulnar nerve, as discussed above. To date, the record does not demonstrate (and the Veteran does not assert) complete paralysis of either upper extremity nerve root, which would warrant 70 or 60 percent ratings for right and left upper extremity nerve root inflammation, respectively. Nevertheless, whether the Veteran may be entitled to higher ratings should be revisited on remand, as discussed below. The Board is cognizant that the record reflects bilateral upper extremity symptoms variously associated with the median or ulnar nerves. DC 8516 provides for 40 and 30 percent ratings for the major and minor sides, respectively, for severe incomplete paralysis of the ulnar nerve. 38 C.F.R. § 4.124a, DC 8516. Because DC 8515 provides higher ratings for severe incomplete paralysis, as discussed above, the Board will not disturb the assigned rating criteria. See 38 C.F.R. § 4.3. At any rate, assigning separate compensable ratings for the same symptoms and functional impairment under different diagnoses would violate the prohibition against pyramiding in 38 C.F.R. § 4.14. The Board considers whether a higher rating is warranted under Diagnostic Code 8510 for paralysis of the upper radicular group. See Joint Motion for Partial Remand dated September 4, 2020 at pgs. 1-2. Under DC 8510, severe incomplete paralysis warrants a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Complete paralysis warrants a 70 percent rating for major upper extremity and a 60 percent rating for the minor upper extremity. Complete paralysis is manifested by all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. 38 C.F.R. § 4.124a, DC 8510. However, a separate rating is not warranted under DC 8510 because the evidence has not demonstrated abnormalities of the cervical spine or complete paralysis of either shoulder or elbow, and assigning separate compensable ratings for the same symptoms/functional impairment under different diagnoses would violate the prohibition against pyramiding in 38 C.F.R. § 4.14. The Board also considers whether the Veteran’s post-surgical scar warrants a compensable rating. During the March 2019 VA examination, the examiner measured a scar related to prior treatment at the Veteran’s left elbow measuring 10 cm x 0.5 cm. The examiner noted that the scar is not painful or unstable and does not cover a total area equal to or greater than 39 square cm (6 square inches). No evidence of record contradicts the examiner’s finding. Thus, a compensable rating for the Veteran’s surgical scar is not warranted. See 38 C.F.R. § 4.118. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND Ratings for Right and Left Upper Extremities A private Independent Disability Evaluation was submitted in support of the Veteran’s claim for a TDIU, noting that the Veteran has had unsuccessful surgeries on the ulnar nerves, bilaterally, and that he was “to undergo additional surgeries on both arms in the near future.” See Independent Disability Evaluation received July 31, 2019 at pg. 1. Subsequent VA treatment records reflect that in August 2019 the Veteran requested a consultation with a VA orthopedic surgeon, in March 2020 he discussed surgical implantation of a cervical spinal cord stimulator (SCS) for treatment of upper extremity nerve pain, and by April 2020 he was scheduled to have an SCS implant procedure done outside the VA system. See VA primary care note dated March 16, 2020; VA pain medicine note dated April 1, 2020. However, the most recent VA treatment records are dated April 2020 and there are no private treatment or surgical notes dated after April 2015. Accordingly, outstanding private and VA treatment records, including surgical records, should be obtained, and a new VA examination should be afforded to the Veteran. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). TDIU With the grant herein of increased ratings for the Veteran’s right and left upper extremity disabilities, the Veteran meets the schedular criteria for entitlement to a TDIU. 38 C.F.R. § 4.16(a). Although the RO denied entitlement to a TDIU in the April 2020 SOC, the Board retains jurisdiction of this issue, and notes that the question of the Veteran’s unemployability was again raised in the September 2020 JMPR. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). However, the Veteran’s TDIU application received in July 2019 is incomplete. The Veteran noted in the application form that the date his disability affected full time employment as June 1, 2010, but in the field for recording the last date he worked full time he entered only a question mark. Additionally, the August 2010 VA examination report reflects that the Veteran reported that at that time he was employed full time, see VA peripheral nerves examination report dated August 12, 2010 at pg. 6, and Social Security Administration records note that the Veteran stopped working in May 2011. See Disability Report – Adult (SSA Form 3368) (at VBMS pg. 13 of 168). Furthermore, the Veteran noted “None” in the section of the July 2019 application form for listing all employers the last five years he worked; however, he noted in the remarks section that he last worked for an energy company, and a June 2014 VA WRIIIS E & M Note reflects that the Veteran reported working mechanic jobs from 2003 to 2005, and for an energy company from 2006 to 2010. This information should be set forth in the TDIU application form in the detail specified by the form over the Veteran’s signature. Notably, the Veteran’s treatment records variously reflect that he was employed in January 2012, March 2019, August 2019, September 2019, and November 2019, suggesting that he was employed as recently as 2019. The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to a TDIU. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). Moreover, if the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information relevant to the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this regard, the Veteran must submit a complete TDIU application form to allow VA to adjudicate the claim and avoid abandonment of the claim. 38 C.F.R. § 3.158. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private and VA health care providers, including surgery records related to his service-connected chronic inflammation of the nerve roots of the right and left upper extremities, if any. If VA attempts to obtain any outstanding records that are unavailable, such should be documented in the electronic claims file and the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that he complete the form and return it for adjudication of his TDIU claim. Allow a reasonable time for a response from the Veteran or his representative. 4. Then, schedule the Veteran for a VA examination to determine the severity of his chronic inflammation of the nerve root, upper right extremity and/or chronic inflammation of the nerve root, upper left extremity, schedule the Veteran for a VA examination. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Elicit from the Veteran all signs and symptoms of his chronic inflammation of the nerve root, upper right extremity and chronic inflammation of the nerve root, upper left extremity. The examiner should address any ameliorative effects of medications and/or devices the Veteran uses in the treatment of his chronic inflammation of the nerve root, upper right extremity and chronic inflammation of the nerve root, upper left extremity. If a medical opinion is offered by the examiner, it must be supported by a complete rationale. 5. Thereafter, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.