Citation Nr: 22014160 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-38 379 DATE: March 11, 2022 ORDER An increased rating for left ulnar neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent thereafter is denied. An increased rating for left lower neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to June 25, 2021, the Veteran's left ulnar neuropathy was manifested by no more than mild incomplete paralysis of the minor extremity. 2. From June 25, 2021, the Veteran's left ulnar neuropathy has been manifested by no more than moderate incomplete paralysis of the minor extremity. 3. Prior to June 25, 2021, the Veteran's left lower extremity neuropathy was manifested by no more than mild incomplete paralysis. 4. From June 25, 2021, the Veteran's left lower extremity neuropathy has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an increased rating for left ulnar neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent from that date have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. 2. The criteria for an increased rating for left lower neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent from that date have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to May 1992. In February 2021, a videoconference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The issues on appeal were remanded for additional development in May 2021 and in December 2021 for the issuance of a supplemental statement of the case (SSOC). This was completed in January 2022, and the case has been returned to the Board for further appellate consideration. Increased Rating Entitlement to an increased rating for left ulnar neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent thereafter The Veteran contends that his left ulnar neuropathy is more disabling than currently evaluated. During the hearing on appeal in February 2021, the Veteran testified that he had numbness and tingling of his arm about 80 percent of the time. In addition, he had weakness and limitation of motion of the arm at the shoulder. Service connection for left ulnar neuropathy was granted by June 2007 rating decision. A 10 percent rating was assigned at that time. The 10 percent rating was continued by the rating decision on appeal and increased to 20 percent as of June 25, 2021, in a July 2021 rating decision. As the Veteran continues to express dissatisfaction with ratings, and they are less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the claims file shows a VA examination was conducted in April 2017. At that time, muscle strength testing was normal in the left upper extremity except for left finger abduction, which was rated at 4/5. There was no muscle atrophy. Sensory examination was 2+ at the biceps, triceps, and brachioradialis. Sensory examination was normal. Radiculopathy was noted, but there was no evidence of constant or intermittent pain, paresthesias or dysesthesias, and no numbness of the left upper extremity. There was mild radiculopathy of the left upper extremity. Nerve conduction studies showed neuropathy of the left upper and lower extremities. Another VA examination was conducted on June 25, 2021. At that time, the diagnoses were left ulnar neuropathy and left lower extremity peripheral neuropathy. It was noted that the Veteran was right hand dominant. The Veteran stated that he had a worsening progression of his peripheral nerve condition. Symptoms of left upper extremity included moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness. Left lower extremity symptoms included mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing was normal throughout the left upper and lower extremities. There was no muscle atrophy. Reflexes were normal in the left upper and lower extremities. Sensory testing showed decreased sensation to light touch in the left inner/outer forearm, hand and fingers. There was decreased sensation of the left lower anterior thigh, thigh/knee, lower leg, ankle, and left foot and toes. There were no trophic changes. Gait was normal. Left ulnar nerve testing showed moderate incomplete paralysis of the left upper extremity. Tests of other nerves of the left upper extremity were normal. Left sciatic nerve testing showed moderate incomplete paralysis of the left lower extremity. The remainder of the left lower extremity nerves was normal. No functional impairment was noted. The Veteran's VA treatment records reflect complaints of tingling and numbness in the left upper extremity. Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Complete paralysis, with "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 the ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of the wrist weakened, warrants a 60 percent rating for a major extremity and a 50 percent rating for a minor extremity. 38 C.F.R. § 4.124a; Diagnostic Code (DC) 8516. 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 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 picture 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). The record shows that the Veteran's left upper extremity is his minor extremity. The VA examinations outlined above show that, prior to June 25, 2021, the Veteran's let upper extremity peripheral neuropathy was manifested by mild radiculopathy. There was no evidence of impairment of motor function, trophic changes, sensory disturbance, loss of reflexes, pain, or muscle atrophy. As such, the Board finds that, prior to June 25, 2021, the most persuasive evidence of record is against a finding that the disability is manifest by mild radiculopathy and, thus the level of impairment is most analogous to mild incomplete paralysis. The Board acknowledges the lay assertions of sensory impairment of which he testified at the February 2021 hearing, but the Board finds the medical of evidence of record to be more probative prior to June 25, 2021, because there is no quantification of the disability prior to that date. The Board has also considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. The record clearly demonstrated impairment of the left upper ulnar nerve only. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for ulnar peripheral neuropathy prior to June 25, 2021. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). On June 25, 2021, the Veteran underwent a VA examination that described the hisleft ulnar neuropathy as being manifested by mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. There was no impairment of muscle strength, muscle atrophy, trophic changes, or impairment of reflexes. Sensory testing showed decreased sensation to light touch in the left inner/outer forearm, hand and fingers. The Veteran's disability was described as moderate incomplete paralysis of the left upper extremity. At no time during the examination was severe disability described. As such, the Board finds no basis for a rating in excess of the 20 percent evaluation that was assigned as of that date. There is no persuasive evidence of increased disability documented in outpatient treatment records prior to or since that VA examination report. As such, the Board finds no basis for a rating in excess of 20 percent from June 25, 2021. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. Id. Entitlement to an increased rating for left lower neuropathy in excess of 10 percent prior to June 25, 2021, and in excess of 20 percent thereafter Service connection for left lower neuropathy was granted in a July 2011 rating decision. A 10 percent rating was awarded at that time as analogous to sciatic neuropathy of the left lower extremity. The 10 percent rating was continued by the rating decision on appeal and increased to 20 percent as of June 25, 2021, in a July 2021 rating decision. As the Veteran continues to express dissatisfaction with ratings, and they are less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the record shows a VA examination was conducted by VA in April 2011. Neurologic examination of the left lower extremity showed motor function to be within normal limits. Sensory examination was decreased in the distribution of the nerves from L4 to S1. Reflexes were 2+ at the knee and ankle. Peripheral nerve involvement was not evidence during the examination. The pertinent diagnosis was left lower neuropathy secondary to compression fracture of the thoracic spine. On examination of the thoracolumbar spine in November 2015, neurologic examination showed no impairment. On thoracolumbar spine examination in April 2017, the Veteran had normal muscle strength on testing with no muscle atrophy. Reflexes and sensory examination were normal. The Veteran had no radicular pain or other symptoms of radiculopathy. Another VA examination was conducted on June 25, 2021. The results were outlined above, with left lower extremity symptoms of mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing and reflexes were normal. There was no muscle atrophy. There was decreased sensation of the left lower anterior thigh, thigh/knee, lower leg, ankle, and left foot and toes. There were no trophic changes. Gait was normal. Left sciatic nerve testing showed moderate incomplete paralysis of the left lower extremity. The remainder of the left lower extremity nerves was normal. No functional impairment was noted. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. On examination by VA in 2011, the Veteran's left lower extremity neuropathy was manifested by mild sensory deficiencies only. There was no evidence of trophic changes, impairment of motor function, loss of reflexes, pain or muscle atrophy. Examinations in 2015 and 2017 showed no neurologic impairment. As such, the Board finds that the level of impairment is most analogous to mild incomplete paralysis of the sciatic nerve. The Board acknowledges the lay assertions of increased impairment, but this is not documented until the VA examination of June 25, 2021. At that time, the examination showed moderate incomplete paralysis of the sciatic nerve, which is sufficient for the rating to be increased to 20 percent, but no more. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerve of the left lower extremity. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for left lower extremity neuropathy prior to June 25, 2021, and against a rating in excess of 20 percent as of that date. As the evidence of record persuasively weighs against a ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.