Citation Nr: 21030823 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-11 589 DATE: May 19, 2021 ORDER Entitlement to a 20 percent rating, and no higher, for lymph node biopsy with injury to ulnar nerve, left upper extremity from September 19, 2013, is granted. FINDING OF FACT The most probative evidence is at least in equipoise as to whether the Veteran's lymph node biopsy with injury to ulnar nerve, left upper extremity manifested functional impairment equivalent to "moderate" incomplete paralysis of the ulnar nerve to the extent that a 20 percent rating, and no higher, may be assigned. CONCLUSION OF LAW The criteria for entitlement to a rating of 20 percent, and no higher, for lymph node biopsy with injury to ulnar nerve, left upper extremity from September 19, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). In February 2020, the Board denied entitlement to a rating in excess of 10 percent for a lymph node biopsy with injury to the ulnar nerve of the left upper extremity. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted an amended Joint Motion for Partial Remand (JMPR) in which the parties agreed that the Board erred by failing to provide an adequate statement of reasons and bases for its decision with regard to whether the appellant was provided with an adequate VA examination. Specifically, the parties agreed that the Board did not discuss a discrepancy within the March 2019 VA examination in which the examiner described the overall severity of the disorder as "mild" but indicated that the Veteran had "moderate" numbness and paresthesias/dysesthesias. The Board notes that the Veteran underwent another VA examination for his ulnar disorder in August 2020. After reviewing the examination report, the Board finds that it addresses the concerns raised by the parties to the JMPR, in that it describes the overall severity of the left ulnar disorder as "moderate" consistent with the moderate symptoms of intermittent pain, numbness, and paresthesias/dysesthesias. As such, the Board finds that this matter is ready for a decision on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Increased Ratings Left Ulnar Disorder The Board finds that the most probative evidence is at least in equipoise as to whether a 20 percent rating may be assigned for the left ulnar nerve disorder for the entire rating period. However, no other higher staged ratings may be assigned. The Veteran's lymph node biopsy with injury to ulnar nerve, left upper extremity, is rated under 38 C.F.R. § 4.124a, DC 8516. Under DC 8516, ratings are assigned for paralysis of the ulnar nerve, with complete paralysis rated as 60 percent (50 percent if in the minor (non-dominant) extremity); severe incomplete paralysis, rated as 40 percent (30 percent if in the minor extremity); moderate incomplete paralysis, rated as 30 percent (20 percent if in the minor extremity); and mild incomplete paralysis rated as 10 percent in either extremity. The medical evidence shows that the Veteran is right-handed; therefore, the left upper extremity is considered his minor (non-dominant) extremity. See C&P Exam, August 2020; Rating Decision Codesheet, October 2020. Turning to the evidence of record, VA treatment records show that the Veteran complained of left ulnar nerve problems, including tingling and burning becoming more frequent, especially while sleeping, in October 2013. The clinician diagnosed neuropathy and prescribed capsaicin cream. The Veteran underwent a VA examination in February 2014. He reported, among other things, having diminished sensation and strength on the ulnar aspect of the left forearm and hand, being unable to lift five-gallon buckets, and having constant pain in the left ulnar area radiating to his fingers. The examiner documented left upper extremity symptoms including mild constant pain, mild paresthesias or dysesthesias, and mild numbness. Muscle strength testing in the left arm showed grip with active movement against some resistance. Sensory testing showed decreased sensation in the left forearm, hand, and fingers. Reflex testing was normal. The examiner concluded that the Veteran had "mild" incomplete paralysis of the left ulnar nerve. Private medical records show that the Veteran saw Dr. T.M. and Dr. S.N. in February 2015. Dr. S.N. observed that the Veteran was concerned about his left arm and remained "kind of weak" in the left hand. A physical examination found that the left arm looked normal, but the Veteran's grip strength was weaker and "his facility with his fingers is not quite the same." Dr. S.N. recommended a trial of physical therapy. Dr. T.M. noted that the Veteran reported being unable to flex his fourth and fifth finger, and had loss of temperature sensation and strength after the lymph node biopsy. A review of symptoms showed no acute neurological symptoms, and a physical exam showed no acute focal motor or sensory deficit. The Veteran was diagnosed with a history of ulnar nerve damage with neuropathy, currently described as "chronic and stable". In April 2017, the Veteran visited the general medicine clinic at a VA facility. He reported that he was still having ulnar issues and was periodically dropping things. A physical examination revealed a "grossly intact" neurological system. The Veteran was taking medication for other conditions, but the care provider did not list any recommended or prescribed treatment for left ulnar neuropathy. The Veteran appeared for a VA examination in March 2019. He endorsed symptoms of pain, numbness, dysesthesias, and impaired movement. The examiner noted mild constant pain, mild intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness in the left upper extremity. Muscle strength and reflex testing were normal, but sensory testing showed decreased sensation in the left hand and forearm. The examiner found "mild" incomplete paralysis of the left ulnar nerve. The record also shows a disability benefits questionnaire (DBQ) for the shoulder joints in March 2019. Range of motion for the left shoulder was 0 to 150 degrees flexion and 0 to 130 degrees abduction, out of the normal 0 to 180 degrees. The examiner noted that there was no evidence of pain on examination, pain with weightbearing, or pain or localized tenderness on palpitation of the joint or associated soft tissues. In August 2020, the Veteran underwent another VA examination. The examiner noted symptoms of moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness in the left upper extremity. Muscle strength testing was normal, but reflexes were hypoactive in the left brachioradialis and sensory testing showed decreased sensation in the left forearm and hand. The examiner found "moderate" incomplete paralysis of the left ulnar nerve. The Board has reviewed the remainder of the Veteran's VA treatment records. However, such records do not reflect that the left ulnar disorder manifested functional impairment to the extent that higher staged ratings may be assigned, other than as indicated herein. 38 C.F.R. § 4.2. After careful review of the record, the Board finds that the most probative evidence is at least in equipoise as to whether a 20 percent rating may be assigned from September 19, 2013, the date of the increased rating claim. 38 C.F.R. § 3.400(o). In reaching this conclusion, the Board has considered the Veteran's private and VA medical records, which document consistent pain, numbness, burning, tingling, and impaired sensation in the left upper extremity. Although the 2014 VA examiner described the severity of the ulnar nerve impairment as "mild", the Board finds that the overall level of functional impairment is better approximated by a 20 percent rating for "moderate" incomplete paralysis. Therefore, with resolution of reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating should be assigned for the entirety of the rating period. See 38 C.F.R. §§ 4.2, 4.7. The Board has considered whether a higher rating than 20 percent may be assigned. 38 C.F.R. § 4.120. However, the record does not reflect functional impairment equivalent to severe incomplete paralysis of the ulnar nerve to the extent that a higher rating may be assigned. 38 C.F.R. § 4.124a, DC 8516. Specifically, the Board observes that none of the VA examiners in 2014, 2019, or 2020 described the Veteran's symptoms as "severe" or documented symptoms fitting such criteria. Regarding motor function, the Veteran's muscle strength was consistently within normal limits, except for left grip strength to active movement against some resistance in 2014 and weaker than normal in 2015. In March 2019, the left shoulder had no pain on examination and maintained significant active range of motion. Sensory testing did not show decreased sensation in the left shoulder, and the record does not suggest trophic changes in the affected area. In sum, considering the totality of the evidence, the Board finds that a higher rating than 20 percent is not for application. See 38 C.F.R. §§ 4.2, 4.7. The Board has considered lay evidence and argument from the Veteran and his representative. However, disability ratings are determined by the application of the rating schedule, which does not support a higher rating in this case. In sum, the Board finds that the most probative evidence is at least in equipoise as to whether a 20 percent rating for the left ulnar nerve disorder may be assigned from September 19, 2013. However, no other higher staged ratings are appropriate during the rating period. See 38 U.S.C. § 5107(a). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.