Citation Nr: 22016554 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-56 493 DATE: March 22, 2022 ORDER Entitlement to a 40 percent disability rating for ulnar nerve entrapment of the right upper extremity (RUE) from October 28, 2014, but no higher or earlier, is granted. FINDING OF FACT 1. The Veteran filed an increased rating for his RUE nerve disability on October 5, 2015. 2. During the period on appeal, there was a factually ascertainable increase in severity of the Veteran's RUE ulnar nerve entrapment on October 28, 2014, but no earlier, manifested by severe incomplete paralysis, but not complete paralysis. CONCLUSION OF LAW The criteria for entitlement to a 40 percent disability rating for ulnar nerve entrapment of the RUE from October 28, 2014, but no higher or earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 2004 to November 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board previously remanded this claim in May 2019 for additional development. The Board finds substantial compliance with the May 2019 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that the United States Court of Appeals for Veterans Claims (the Court) has held that a total disability rating indicating unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating when raised by the Veteran or the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, a review of the record reveals that the Veteran is employed, and there are no contentions that said employment is marginal. As the record does not suggest that the Veteran is unable to secure or follow a substantially gainful occupation, TDIU has not been raised and is not before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a 40 percent disability rating for ulnar nerve entrapment of the RUE from October 28, 2014, but no higher or earlier, is granted. This appeal stems from an October 5, 2015, increased rating claim. At that time, the Veteran's right upper extremity (RUE) disability was rated 20 percent disabling under Diagnostic Code 8599-8514, for radial nerve peripheral neuropathy, status post clavicle fracture. Following the receipt of additional treatment records indicating the disability stemmed from the ulnar nerve, the RO recharacterized and the Veteran's disability under Diagnostic Code (DC) 8516 under the ulnar nerve impairment and rated the disability for mild ulnar nerve entrapment RUE, assigning a 10 percent disability rating from March 1, 2016, and a 30 percent disability rating from November 20, 2019. The Veteran contends that regardless of the Diagnostic Code or characterization of his RUE disability, he believes his disability worsened over time, not improved. He takes issue that the disability rating should ever have been reduced and instead contends that the rating, instead, should be increased. As will be outlined below, the Board finds the persuasive weight of the evidence favors a 40 percent disability rating from October 28, 2014, but no higher or earlier, is warranted. At the outset, the Board emphasizes there is no "catch-all" neurological diagnostic code. If the assigned diagnostic code is incorrect, VA has the discretion to change the DC to the correct one, as was done here. Butts v. Brown, 5 Vet. App. 532, 539 (1993)(en banc)(finding VA and the Board possess specialized expertise in identifying and assessing the medical nature of a claimed condition). As will be discussed in more detail below, the Board finds the recharacterization was appropriate based on the Veteran's additional treatment records and examinations. The Board notes the Veteran was granted service connection for radial nerve peripheral neuropathy, status post clavicle fracture in a March 2010 rating decision. The Veteran did not appeal or submit additional evidence within a year of the March 2010 rating decision. As such, it became a final decision. Thereafter, VA received the Veteran's increased rating claim on October 5, 2015, prompting the recharacterization of the Veteran's disability under the Diagnostic Code. This recharacterization, however, did not disrupt or change the fact that the Veteran remained service connected for the same disability since he was initially granted benefits in the unappealed final March 2010 rating decision. Thus, the Board will consider the severity of his recharacterized ulnar nerve entrapment from the date VA received his increased rating claim, or up to one year prior to VA's receipt of the increased rating claim, to the extent an increase in severity is factually ascertainable. See 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8516. Under this 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 is 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 is rated as 60 percent for the major extremity and 50 percent for the minor extremity. 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. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means temperate, not severe, or not being or involving what is extreme. "Moderate" means tending toward the mean or average amount, or not violent, severe, or intense; or, limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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 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). Turning to the relevant evidence of record, on October 28, 2014, the Veteran endorsed experiencing a "locking" sensation in the fingers of his right hand that is worse in the morning. He stated that he also experienced numbness in the right hand that has been progressively worsening. See October 2014 treatment records. He stated that he experienced so much pain that he was unable to tie his shoelaces. See October 2014 treatment records. In November 2014, the Veteran endorsed experiencing numbness in his right hand and intermittent contractions. See November 2014 VA treatment records. In December 2014, the Veteran reported that he was initially treated at the VA for a suspected radial nerve injury due to his right hand not working "right" and tingling in the fingers. He endorsed tingling in the mornings only. See December 2014 treatment records. In March 2015, a VA examiner opined that the Veteran did not have a radial nerve injury. In June 2015, the Veteran completed a peripheral nerves conditions disability benefits questionnaire (DBQ). He endorsed intermittent tingling and numbness in his right hand since 2007 and complained of right hand numbness and radial sensory neuropathy. Numbness was mostly noted on two fingers, but sometimes occurs in all fingers. The Veteran was noted to have mild numbness in the right upper extremity attributable to a peripheral nerve condition with decreased sensation in the right hand / fingers. All of the upper extremity nerves and radicular groups were found to be normal. The examiner indicated there were no significant clinical findings related to radial sensory neuropathy and that the symptoms were subjective more than objective. An EMG was ordered. An EMG was completed in July 2015 which revealed electrodiagnostic evidence of ulnar nerve entrapment at the right elbow consistent with mild ulnar neuropathy. There was no electrodiagnostic evidence of right sided median or radial nerve entrapment syndrome such as carpal tunnel or large fiber peripheral neuropathy. See 2015 VA treatment records. In July 2015, the Veteran complained of numbness, tingling, and pain in the upper right extremity. See July 2015 VA treatment records. Treatment records noted that while the patient was previously diagnosed with radial nerve damage in 2007, a 2015 EMG revealed he probably had ulnar nerve damage rather than radial nerve damage given the location of his symptoms. The Veteran endorsed numbness and tingling in his right fingers. He stated that he also has pain in the ulnar palmer surface of the right hand that is worse at night and in the mornings. He endorsed being woken by the pain. The Veteran stated that he has hand spasms causing his D4 and D5 to flex involuntarily. He described his hand as feeling weak and endorsed dropping items. He described holding his son for long periods of time as impossible because his arm / hand begins to feel weak. See July 2015 VA treatment records. Upon examination, the Veteran had decreased sensation in two fingers and on the palmer surface. In October 2015, the Veteran stated that his condition has persisted and worsened since 2009. He conveyed experiencing weakness in his grip and pain from the hand that wakes him at night. He described involuntary spasm of the hand causing his 4th and 5th digits to involuntarily flex. The Veteran stated that his symptoms are consistent with his original 2009 claim. See October 2015 correspondence. In 2017, the Veteran stated that his symptoms have remained the same but increased in severity, frequency, and duration since discharge. The Veteran again stated that he is awoken at night, several times, due to numbness, tingling, and pain. He has dropped items suddenly and without warning due to a lack of grip control. He stated that he has involuntary spasms and flexion of his hand that prevents him from working for "several minutes" out of each hour. See October 2017 VA Form 9. The Veteran was most recently afforded a VA examination in November 2019 during which the examiner indicated that the Veteran has a diagnosis of right ulnar nerve neuropathy at the right elbow level. See November 2019 VA examination. He endorsed worsened grip strength. He stated that he experiences muscle spasm 4 or 5 times per week that is triggered by typing, lifting, fine motion, and pinching. He cannot type for 20 to 25 minutes and cannot write by hand. Symptoms were noted to be severe pain, moderate paresthesias and / or dysesthesias, and moderate numbness. Grip strength was active movement against some resistance, decreased from normal. Muscle atrophy was not indicated, and reflexes were normal. There was decreased sensation in the right hand / fingers. Tinel's test at the right elbow induced tingling and numbness sensation in the 4-5th fingers. The Veteran did not have trophic changes attributable to peripheral neuropathy. The Veteran's right ulnar nerve was assessed as moderate incomplete paralysis. Based on the above, the Board finds the Veteran's disability has been appropriately recharacterized as mild ulnar nerve entrapment under DC 8516 in light of the multiple opinions of record and EMG results. The Board also finds the Veteran's disability more nearly approximates a 40 percent disability rating for severe incomplete paralysis of the major extremity from October 28, 2014, but no earlier. Upon review, there is a factually ascertainable increase in severity of the Veteran's symptoms beginning October 28, 2014. Indeed, treatment records on October 28, 2014, note complaints of symptoms that the Veteran continued to endorse throughout the pendency of this appeal. At the time, he complained of a "locking" sensation in his fingers on the right hand that is worse in the morning, increasing numbness, and pain so severe he was unable to tie his shoelaces. In the months following, complaints of these symptoms continued including notations of intermittent contractions. In the years following, the Veteran stated that he has consistently experienced his current symptoms since onset of injury but there was worsening prompting his 2015 claim for an increased rating. He also referred to dropping things unintentionally from his right hand, pain so severe it wakes him multiple times at night, spasms, inability to hold his child for long periods of time, and decreased sensation. The Board finds the Veteran is competent to report his symptoms and said reports are credible. His consistent endorsement of the same symptoms but with varied severity further lends credibility to his statements. While the 2019 VA examiner indicated overall that the Veteran's symptoms severity of ulnar nerve entrapment was moderate, the Board notes a medical examiner's use of descriptive terminology such as "moderate" is not dispositive of the issue. Here, the Veteran was overall assessed as moderately impaired, but his individual pain assessment was assessed as severe. Further, and of great significance, the examiner noted only that the Veteran's current symptoms included muscle spasm every week and an inability to write and an inability to type more than 20 to 25 minutes. The examiner failed to address or assess the Veteran's lay statements of dropping things involuntarily, waking from sleep multiple times per night due to hand pain, tingling, and numbness, and difficulty holding things due to increased symptoms. Considering the examiner's assessment of severe pain as well as the unaddressed symptoms reported by the Veteran, the Board finds his symptoms more nearly approximate a 40 percent disability rating for severe major extremity incomplete paralysis under DC 8516 from October 28, 2014. The Veteran was not afforded a VA examination to determine the severity of his ulnar nerve entrapment until 2019. In light of his consistent reports of similar symptoms since October 28, 2014, and the severity thereof, the Board finds a 40 percent disability rating is warranted from October 28, 2014, the date upon which a factually ascertainable increase in severity is evident from the record. The Board notes treatment records indicate the Veteran is right-hand dominant. The Veteran's disability is fully capable of evaluation under the rating schedule. Prior to October 28, 2014, the record lacks any indication of a factually ascertainable increase in severity of symptoms. Further, the Board has considered whether a higher disability rating would be warranted for complete paralysis under DC 8516 but finds such an increased rating is not warranted. While the Board acknowledges the Veteran has stated that he experiences involuntary spasms and flexes of his fingers, these symptoms do not more nearly approximate complete paralysis as considered under DC 8516. The record lacks any reference to a finding of "griffin claw" deformity; loss of extension of ring and little fingers, inability to adduct the thumb; or weakened flexion of the wrist. Accordingly, a rating in excess of 40 percent is not warranted at any time during the appeal period. (Continued on the next page) In conclusion, the Board finds there was a factually ascertainable increase in severity on October 28, 2014, but no earlier, in the Veteran's ulnar nerve entrapment, and his symptoms more nearly approximated a 40 percent disability rating for severe incomplete paralysis of the major extremity under DC 8516, but no higher. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.