Citation Nr: 0937422 Decision Date: 10/01/09 Archive Date: 10/14/09 DOCKET NO. 07-16 985A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 40 percent for thoracic outlet syndrome, left upper extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Benjamin Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from June 1998 to June 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's thoracic outlet syndrome, left upper extremity, is characterized by severe incomplete paralysis. 2. The Veteran's left upper extremity is his dominant extremity. CONCLUSION OF LAW The criteria for a 50 percent rating for thoracic outlet syndrome, left upper extremity, have been reasonably met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 8510 & 8610 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was met by way of letters from the RO to the Veteran dated May 2006, October 2006 and May 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. Therefore, the Board finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to the merits of the Veteran's appeal. The Veteran is claiming entitlement to a rating in excess of 40 percent for his thoracic outlet syndrome, left upper extremity. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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 (2007). The Veteran initially claimed entitlement to service connection for thoracic outlet syndrome, left upper extremity, in June 2002, shortly after being released from active service. A May 2002 rating decision, issued while the Veteran was still in service, granted service connection for left ulnar nerve entrapment with decreased strength, left hand, and assigned a 30 percent rating effective from June 23, 2002, the day following the Veteran's release from active service. The Veteran filed for an increased rating for this condition in May 2006, and a September 2006 rating decision granted a 40 percent rating effective from October 9, 2005, based on a VA examination which indicated severe incomplete paralysis of left upper extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 8510. In October 2006 the Veteran requested reconsideration of that rating. A February 2007 rating decision continued the 40 percent rating for the Veteran's thoracic outlet syndrome, left upper extremity. The Veteran submitted a Notice of Disagreement (NOD) in May 2007. The RO issued a Statement of the Case (SOC) later that month and in June 2007 the Veteran filed his Substantive Appeal (VA Form 9). Since then the RO has issued several Supplemental Statements of the Case (SSOC) and has continued to deny the Veteran's claim. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group (fifth and sixth cervicals). Diagnostic Code 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 40 percent on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis, with all shoulder and elbow movement lost or severely affects, and hand and wrist movement not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictures 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The medical evidence in this case consists of private treatment records, VA treatment records, VA examinations, articles submitted by the Veteran and statements made by the Veteran and various family members. VA treatment reports from December 2006 indicate that ht left arm was quite weak with numbness. Deep tendon reflexes were intact and there was full, active range of motion of the extremity. There was decreased sensation noted. The Veteran indicated that he was treated at a private facility with physical therapy and that he takes Neurotin for the condition. Additional VA treatment reports from January 2007 indicate that movement of the Veteran's left upper extremity was slow and mildly labored. Hand coordination on the left extremity was significantly below normal, lifting ability was well below average and grip strength was nearly absent. Both two- point discrimination and light touch were absent in the left hand. The examiner stated that the Veteran appeared to have lost protective sensation in the left upper extremity. A January 2007 VA examination report indicated that the Veteran reported numbness involving the entire left upper extremity. He stated that he was unable to use his left arm in day-to-day activities such as holding onto objects and picking up his children. He also indicated that he drops objects. Sensory abnormalities were noted throughout the left upper extremity. There was impairment of grasp and ability to lift compared to the right upper extremity. The Veteran indicated that he was receiving stretching and deep tissue massage for the condition about once a week which was providing some relief. There was no evidence of local muscular atrophy, but Addison's test was positive for thoracic outlet with absent sensation noted. Most recently, in October 2008 the Veteran was provided an additional VA examination. During that examination the examiner characterized the Veteran's condition as severe incomplete paralysis. Movement of the left upper extremity was slow, strength was dramatically decreased and two-point discrimination and light touch sensation were absent. The examiner determined that the Veteran suffered from left upper extremity paresthesia with marked loss of sensation, decrease in power and loss of fine motor skills. The diagnosis was severe, left, dominant, thoracic outlet compressive syndrome with incomplete paralysis and significant functional loss. The Veteran's primary contention is that the rating assigned for his thoracic outlet syndrome, left upper extremity, was incorrectly based on evidence that the Veteran's right upper extremity was the dominant extremity. The Veteran contends that the evidence more accurately supports a finding that the Veteran's left upper extremity is dominant. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In his May 2007 Notice of Disagreement the Veteran stated that before his left arm injury he wrote left-handed and that only since that injury he has learned how to write with his right hand. In his June 2007 Substantive Appeal the Veteran further stated that he attended a Catholic school where the nuns there required him to do everything with his right hand, but that he was naturally inclined to use his left. The Veteran also submitted August 2007 statements from both his mother and father stating that the Veteran was left-handed. Also in August 2007 the Veteran took part in a hearing with a Decision Review Officer. During this hearing the Veteran provided further anecdotal evidence that his left extremity was in fact dominant. Most importantly, during the Veteran's October 2008 VA examination the examiner determined that the Veteran was ambidextrous, with the left hand dominant for eating and writing. He stated that during service the Veteran used his right hand for shooting and throwing, but that the left upper extremity was the dominant one. Based on the foregoing medical and lay evidence, the Board finds that an increase to a 50 percent rating for the Veteran's thoracic outlet syndrome, left upper extremity, is appropriate under Diagnostic Code 8510. The evidence presented indicates that the Veteran has severe incomplete paralysis of his left upper extremity and that the left upper extremity is his dominant extremity. The Board has also considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2008). The Board finds that the displayed level of disability is contemplated by the 60 percent disability rating now assigned. Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 50 percent rating for thoracic outlet syndrome, left upper extremity, is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs