Citation Nr: 1043221 Decision Date: 11/17/10 Archive Date: 11/24/10 DOCKET NO. 07-26 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent for numbness, right hand. 2. Entitlement to an evaluation in excess of 10 percent for numbness, left hand. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from June 1979 to June 1983 and from September 1986 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded this claim in December 2006. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. Numbness, right hand is characterized by pain, swelling , numbness over the fifth finger and a weakened grip. These findings approximate moderate incomplete paralysis of the ulnar nerve. 3. Numbness, left hand is characterized by pain, swelling, numbness over the fifth finger and a weakened grip. These findings approximate moderate incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. A 30 percent rating, and no higher, is warranted for right hand numbness. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2010). 2. A 20 percent rating, and no higher, is warranted for left hand numbness. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, VCAA notice was provided after the rating decision on appeal because the decision pre-dates the enactment of the VCAA. In a January 2007 letter, the RO RO provided the Veteran with notice of the evidence required to substantiate his increased rating claims. The January 2007 letter informed the Veteran what information VA was responsible for obtaining and explained what evidence he should submit. The letter included notice of how VA determines disability ratings and effective dates. As noted, the VCAA notice was provided after the rating decision on appeal; however, any defect in the timing of the VCAA notice was cured by readjudication of the claims in the June 2009 Statement of the Case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), Regarding the duty to assist, the RO obtained the pertinent evidence necessary to decide the claim. The record on appeal includes service treatment records and relevant post-service medical records identified by the Veteran. The Veteran has had several VA examinations. The Board finds that all necessary development and notification has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis of Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2008) The degree of impairment resulting from a disability is a factual determination in which the Board must focus on the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2010). The Veteran's hand disabilities are rated by analogy to paralysis of the ulnar nerve under Diagnostic Code 8516. Diagnostic Code 8516 provides that a 10 percent rating is warranted for mild incomplete paralysis of the hand, dominant and non-dominant. Moderate incomplete paralysis warrants a 30 percent rating for dominant hand and a 20 percent rating for the non-dominant hand. Severe incomplete paralysis warrants a 30 percent rating for the non-dominant hand and a 40 percent rating for the dominant hand. A 50 percent rating is assignable for complete paralysis of the minor hand, and a 60 percent rating is assignable for complete paralysis of the major hand with the "griffin claw" deformity due to flexor contraction of the 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. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2010). The Board notes that VA medical records indicate that the Veteran is right-hand dominant. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2010). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2010). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2010). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2010). With respect to joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. See 38 C.F.R. § 4.45. The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare- ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 - 207 (1995). B. Factual Background and Analysis A June 1992 rating decision granted service connection for numbness of the hands and assigned a non-compensable (zero percent) rating. In December 1998, the Veteran submitted claim for an increased rating. At a September 1998 VA examination, the Veteran reported swelling and pain in both hands. The examiner noted subjective feelings of weakness and easy fatigue of both hands. The examiner noted that no swelling of the hands was present on examination. The Veteran testified at a hearing at the RO in February 2001. The Veteran reported that his symptoms included burning, numbness and tingling and difficulty picking things up. Upon VA examination in August 2007, the Veteran reported episodes three to four times per month that started with tingling in the little finger and ring finger and progressed into numbness with a sensation of feeling swollen. The symptoms were worse in the left hand than the right. The Veteran indicated that, in the past, the symptoms were associated with prolonged standing, but now he could not attribute the symptoms to a particular activity. They seemed to come and go regardless of activities. He indicated that he noticed more symptoms in cold weather. It was noted that, during these episodes, the Veteran was anxious about manual labor because he did not feel comfortable using the affected hands. He felt that his grip was not strong and worried about dropping things. On physical examination, the examiner noted full range of motion of the hands. The Veteran had a slight decrease in sensation in the bilateral fifth finger. There was no decreased sensation across the ulnar border of bilateral wrists and forearms or the rest of the arms. He had slight weakness with abduction of the fifth finger on the left hand compared to the right hand. His pinch was within normal limits, with no focal muscle atrophy. He had a positive Tinel's over the ulnar nerve on the left but not on the right. He had a negative carpal tunnel compression test. The examiner noted that EMG's in 1995 showed no focal neuropathy. The examiner remarked that, throughout the Veteran's file, there were consistent complaints of numbness, tingling and a sensation of swelling in the bilateral hands starting with the date of injury with numbness of the fifth finger bilaterally. It was noted that the Veteran's symptoms tended to be episodic, and he was not having a flare-up on examination. The examiner indicated that EMG's are good tests for evaluating neurologic dysfunction but are not 100 percent sensitive and specific for intermittent symptoms and might not show any pathology. The examiner further indicated that the Veteran's symptoms were consistent and imtermittent and were likely a low level irritation of the ulnar nerve. The examiner noted that the symptoms were primarily with subjective sensation. Initially, the Board notes that there are no findings of complete paralysis of the ulnar nerve or of Griffin claw deformity of either hand. Accordingly, the Veteran's hand disabilities do not warrant ratings for complete paralysis under Diagnostic Code 8516. The above evidence establishes that, throughout the appeal period, the Veteran has consistently reported pain, weakness and swelling of the hands. He has indicated that his symptoms are worse in his left hand than his right. VA examination reports during the appeal period reflect normal nerve conduction studies. Examiners have noted intermittent swelling of the hands and numbness over the fifth finger bilaterally. The 2007 VA examination indicated a positive Tinel's sign over the ulnar nerve on the left. The most recent VA examination characterized the Veteran's disability as a low level irritation of the ulnar nerve. With respect to the DeLuca criteria, the examination reports reflect findings of functional loss due to pain and weakness, including weak grip and difficulty picking things up. In light of the objective findings and the functional impairments associated with the Veteran's hand disabilities, the Board concludes that the Veteran's hand disabilities more nearly approximate moderate incomplete paralysis of the right and left ulnar nerve. As noted above, Diagnostic Code 8516 provides that a 30 percent rating is assignable for moderate incomplete paralysis of the major (dominant) hand and a 20 percent rating for the minor (non-dominant) hand. There are no findings in this case of severe incomplete paralysis or of functional impacts that approximate severe incomplete paralysis. Therefore, a 30 percent rating, and no higher, is granted for the right hand numbness. A 20 percent rating, and no higher, is granted for the left hand numbness. D. Extraschedular considerations In exceptional cases, including when a disability causes marked interference with employment or requires frequent periods of hospitalization, a higher evaluation may be available on an extraschedular basis. See 38 C.F.R. § 3.321(b)(2010). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determined whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran is currently in receipt of a TDIU for his service- connected disabilities. A TDIU was granted in a November 2008 rating decision, effective January 2008. The Veteran has not contended that his service-connected hand disabilities rendered him unemployable prior to that date. The record on appeal does not reflect that the Veteran's hand disabilities have required frequent periods of hospitalization. Nor are any findings present that are not reflected in the ratings assigned. Accordingly, the Veteran's claims do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, and the Board is not required to remand these claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2010). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 30 percent rating is granted for numbness, right hand. A 20 percent rating is granted for numbness, left hand. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs