Citation Nr: 1709084 Decision Date: 03/23/17 Archive Date: 04/07/17 DOCKET NO. 09-43 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for thoracic outlet syndrome, with left arm numbness, currently rated as 40 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) based on service-connected disabilities. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1972 and from September 1972 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Veteran testified at a Travel Board hearing. The Veterans Law Judge who presided at the hearing is no longer employed by the Board. The Veteran was offered another hearing, but declined. See Correspondence from Veteran dated August 2014. In September 2014, the Board denied a rating in excess of 40 percent for thoracic outlet syndrome and awarded a 20 percent rating for residuals of a left humerus fracture. The Board remanded the TDIU issue at that time. The Veteran appealed the Board's denial of the thoracic outlet syndrome issue to the U.S. Court of Appeals for Veterans Claims (Court). The left arm rating was not appealed. In August 2015, the Court signed an order vacating the Board's September 2014 decision and remanding the matter to the Board for action in compliance with the joint motion of the parties. In February 2016, the Board remanded the issues noted above for additional development, including VA examination and opinion and VA medical records. Through his representative, the Veteran contends that his service-connected thoracic outlet syndrome and left shoulder limitation of motion disabilities should be evaluated as a single entity and rated as 60 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8513, 8613, or 8713. See Correspondence received August 30, 2016. FINDINGS OF FACT 1. Thoracic outlet syndrome and limitation of motion of the left shoulder is manifested by incomplete severe paralysis of all radicular groups of the left upper extremity. 2. The Veteran is service-connected for disabilities of a common etiology that result in one disability ratable at 60 percent. 3. The Veteran is precluded him from securing or following a substantially gainful occupation as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a single rating of 60 percent for thoracic outlet syndrome, left arm numbness (nondominant) and limitation of motion of the left arm/shoulder with left humerus fracture are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8613 (2016). 2. The criteria for a TDIU based on a single disability have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). To the extent that the action taken herein constitutes the full benefit sought on appeal as reflected in the appellant's August 2016 contentions, further discussion of VCAA is not necessary at this time. Thoracic outlet syndrome Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 2014). Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran's service-connected thoracic outlet syndrome is rated as 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8612, which rates paralysis of the lower radicular group. A separate 20 percent rating is assigned for the left arm limitation of motion due to the residuals of the left humerus fracture under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board noted in the September 2014 decision that the Veteran's thoracic outlet syndrome, left arm numbness (nondominant), is manifested by incomplete severe paralysis of the lower radicular group, but does not result in complete paralysis of the lower radicular group. Additionally, the Board noted that the Veteran has limitation of motion of the left arm/shoulder to midway between side and shoulder level which is attributable to the thoracic outlet syndrome, and including consideration of the left humerus fracture. According to the joint motion of the parties, consideration must be given to whether the Veteran's thoracic outlet syndrome and limitation of motion of the left arm can be considered a single entity under all radicular groups under Diagnostic Codes 8513, 8613 and 8713. The record reflects that the Veteran's left upper extremity is his non-dominant side. Under Diagnostic Codes 8513, 8613 and 8713, severe incomplete paralysis, neuritis or neuralgia of all radicular groups for the non-dominant side is rated as 60 percent disabling. The Veteran was examined in August 2008. The Veteran reported that he had left shoulder pain, a tingling sensation down his left arm, and swelling of the left hand. He reported having radiating pain to his neck. He indicated that he had left shoulder deformity, instability, stiffness, and weakness. There was no dislocation or subluxation, locking, or effusion. A motor evaluation revealed that the Veteran had 1/5 strength for left grip and left arm strength, and had no pincer grip. Light touch was decreased. Left biceps, triceps, and brachioradialis reflexes were 1+. Left finger jerk was zero. A VA examination dated August 2016 noted the Veteran had 45 degrees of movement on flexion and adduction and 10 degrees of external rotation and 15 of internal rotation. The Veteran was unable to perform repetitive testing due to pain. The examiner also noted presence of adhesions, weakened movement due to muscle or peripheral nerve injury, deformity, atrophy of disuse, and less movement than normal. The examiner noted severe, incomplete ulnar nerve paralysis. The Board finds that the Veteran's thoracic outlet syndrome and limitation of motion should be evaluated as one disability as his service-connected thoracic outlet syndrome and left shoulder post-fracture disability are of a common etiology, trauma in service, and these disabilities produce a disability picture that impacts all radicular groups of the left upper extremity. The Board notes that diagnostic code 8613 more accurately describes the impairment the Veteran experiences from his service-connected disabilities, as his impairment involves limitation of motion of the shoulder, pain, peripheral nerve injury, and muscle strength of the left extremity. Accordingly, a 60 percent disability rating due to incomplete severe paralysis of all radicular groups of the left upper extremity is warranted and represents a full grant of the benefit sought on appeal. 38 C.F.R. § 4.124a, Diagnostic Code 8613 (2016). TDIU A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board's September 2014 remand required the RO to obtain a VA medical opinion (and examination if deemed necessary), as to whether the Veteran's service-connected disabilities are so disabling as to render him unemployable. The August 2016 VA examiner opined that the Veteran's left upper extremity disability was manifested by an inability to use his left extremity above navel height as well as symptoms of pain and numbness. The examiner noted that heavy to medium labor was precluded due to physical limitations and the Veteran would not be able to perform clerical occupations due to an inability to type and a lack of formal education following military service. See VA examination report dated August 2016. The August 2016 examiner's findings are consistent with a January 2016 private certified rehabilitation counselor's opinion. In that opinion, after reviewing the Veteran's medical and work history, the rehabilitation counselor determined that the Veteran's "service-connected disabilities prevent him from performing jobs at his skill level and he lacks transferable skills for a sedentary position." In light of the findings from the VA examination dated August 2016 and the private opinion report dated January 2016, as well as the medical records from VA and SSA, the Board finds that the is Veteran precluded from obtaining or maintaining any gainful employment by reason of his service-connected disabilities. Therefore, entitlement to TDIU is warranted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). ORDER A single evaluation 60 percent disabling the Veteran's thoracic outlet syndrome and limitation of motion of the left shoulder is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. A total disability rating due to individual unemployability is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ A. S. Caracciolo Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs