Citation Nr: 21026548 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 08-35 673 DATE: May 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for iatrogenic left ulnar neuropathy is denied. FINDING OF FACT The Veteran's residuals from removal of a soft tissue lesion on the left arm are manifested by not more than moderate incomplete paralysis of the minor extremity. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for iatrogenic left ulnar neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1969 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision issued by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board remanded this issue in August 2012, December 2017, and July 2019. Most recently, the Board directed the RO to obtain the Veteran's VA treatment records from August 2019 to the present and to determine whether EMG or nerve conduction studies were performed after the September 2012 VA examination. If so, the RO was to associate the results with the file and readjudicate the claim; if not, the RO was to schedule the Veteran for a new examination. The February 2021 rating decision increased the Veteran's rating to 20 percent effective September 2005. Entitlement to a rating in excess of 20 percent for iatrogenic left ulnar neuropathy In his December 2005 claim, the Veteran reported his left-hand condition had gotten much worse. He stated he experienced pain and numbness all the way up his right arm from his finger. The pain was so severe he could not sleep at night. He explained he was being treated for the condition. While he wrote that the pain and numbness were all the way up his right arm, this may have been a typographical error as the Veteran was discussing his left hand condition, and, as discussed further below, his complaints were consistently about his left upper extremity. In his April 2010 VA Form 9, the Veteran explained he believed he was entitled to a rating higher than ten percent for residuals of removal of a soft tissue lesion on the left arm and left hand because he had cramps in his hand and tingling sensations in his hand and arm. At the time of his February 2017 VA examination, the Veteran reported complaints of severe intermittent pain, moderate paresthesias, and moderate numbness. Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8616 and 8716. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity. Complete paralysis includes the "'griffin claw' 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), cannot adduct the thumb; flexion of wrist weakened. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete paralysis includes the hand inclined to the ulnar side, the index and middle fingers more extended than normally considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. Paralysis of the musculospiral nerve (radial nerve) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8514. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8614 and 8714. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete paralysis includes drop of hand and fingers, wrist and fingers perpetually fixed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. The term "incomplete paralysis" 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Treatment notes from October and November 2005 reflect the Veteran complained of numbness and tingling in his left hand, mostly in the ring finger and left-hand cramps, a burning sensation, and prickling sensation. It was noted this has been going on since service, but was increasing in frequency and the medication previously prescribed was no longer effective. A nerve conduction velocity (NVC) test from November 2005 was abnormal for the median and ulnar nerves. A January 2006 VA examiner indicated the Veteran had a median nerve problem in the left hand for which he used a brace and it was noted he was "apparently...doing okay on the left side." The Veteran was next examined by the VA in September 2012. At that time, he was diagnosed with numbness and tingling of the left upper extremity, which he described as moderate. The examiner indicated moderate intermittent left upper extremity pain, paresthesias and/or dysesthesias, and severe numbness. His muscle strength testing, reflex exam, and sensory exam were normal. Tests performed for median nerve evaluation, including Phalen's sign and Tinel's sign were negative. The examiner indicated all nerves were normal, but an addendum to the examination would be provided after an EMG study was conducted. In February 2021 the Evidence Intake Center requested a copy of the EMG study and follow up referral. No documents were found at the Carl Vinson VA Medical Center. Another examination was conducted in August 2016. At that time, severe left upper extremity intermittent pain and moderate paresthesias and/or dysesthesias and moderate numbness were noted. Muscle strength testing was normal. The Veteran's left deep tendon reflexes of the bicep, tricep, and brachioradialis were hypoactive. His sensory exam was normal. The examiner found the median and ulnar nerves to be normal and indicated mild incomplete paralysis of the radial nerve. It was noted the Veteran used a brace occasionally. The examiner concluded the Veteran was capable of limited handling and fingering using the left upper extremity. At the time of the February 2017 VA examination, the examiner found the Veteran had normal grip and pinch because the Veteran was observed ambulating with a cane that was gripped using the left hand. Normal strength on wrist flexion and normal flexion of the hand, thumb, and second finger were noted. Painful but normal flexion of the third, fourth, and fifth fingers were noted. The Veteran's hand was not inclined to the ulnar side. There was no atrophy of the thenar eminence. The examiner found mild impairment of the left median nerve based on marginal loss of function. There was no pain at rest or using the left forearm. Nor was there weakness, incoordination, excess fatigability, additional functional loss with pain, pain on use, weakness, incoordination, or excess fatigability with the left forearm. With respect to the left hand, there was no incoordination, weakness, or excess fatigability that would limit functional ability and no additional functional loss. The Veteran did have pain and pain on use with additional loss of motion estimated as a three to five-degree loss of flexion when performing fine/gross motor manipulations, such as raking the yard, lifting, and grooming. The January 2021 VA examiner diagnosed the Veteran with iatrogenic left ulnar neuropathy. He noted the Veteran's dominant hand is his right hand. Symptoms included mild left upper extremity intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Left wrist flexion and grip were four out of five, and the rest of the muscle strength testing was normal. The Veteran's brachioradialis reflex was hypoactive, and the rest of the reflex testing was normal. The Veteran's sensory exam revealed decreased left inner/outer forearm and hand/fingers. Phalen's sign and Tinel's sign were both negative. The examiner indicated the Veteran had moderate incomplete paralysis of the ulnar nerve. The median and radial nerves were noted as normal. The examiner explained that EMG testing was not necessary in this case, with well-defined historical and physical exam findings indicating a definitive diagnosis. He further noted the previous diagnosis was not medically informative and the current diagnosis is based on the current history of the present illness and exam, indicating the Veteran's long-standing service-connected diagnosis. Based on the above, the Board finds that the disability is primarily manifest by pain, sensory disturbance, and loss of reflexes. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. While severe symptoms were reported on several occasions, including severe numbness in the 2012 VA examination, complaints of severe intermittent pain during his 2017 VA examination, and the August 2016 VA examiner indicated reports of severe left upper extremity intermittent pain, based on the entirety of symptoms, the overall impairment more closely resembles moderate incomplete paralysis. In that regard, clinical testing has repeatedly demonstrated no more than a moderate impairment to the nerve. The 20 percent rating considers numbness in pain. Absent more than mild to moderate clinical findings on various nerve specific testing and multiple examinations during the appeal period, a higher rating is not warranted. Additionally, while the record includes assessments of incomplete paralysis of the radial nerve, median nerve, and ulnar nerve, considering the record as a whole and the most recent assessment by the January 2021 VA examiner, in which he explains a correction to the diagnosis was needed, the record suggests the Veteran's ulnar nerve is at issue. The Veteran's reported symptoms remained largely consistent, although increasing in severity, and the record does not suggest that an additional rating for the radial nerve or median nerve is warranted. See 38 C.F.R. § 4.14. To also rate these nerves would amount to pyramiding as the Veteran's symptoms of the left upper extremity nerve would overlap with these other diagnostic codes. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli 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.