NEURALGIA

Summary

The Veteran, an Army Veteran who served from April 2012 to January 2019, appeals the denial of an increased rating for his service-connected neuralgia of the left hand. The Veteran was initially granted service connection for this condition at 10 percent disabling, effective January 5, 2019, under Diagnostic Code 8516. He contends that his left hand impairment, stemming from a service-connected left ring finger fracture stabilized with a metal plate, is more severe than currently rated. The Veteran testified to experiencing constant numbness, tingling, stiffness, and decreased strength in his entire left hand, which worsens during flare-ups and impairs his ability to perform his duties as an electrician. The Board found that the Veteran's condition, including his own credible testimony, more closely approximates moderate incomplete paralysis of the ulnar nerve throughout the appeal period. The Board acknowledged that while the VA examiner found mild incomplete paralysis, the Veteran's symptoms, including pain and paresthesias, and the impact on his daily activities, warranted a higher rating. Resolving reasonable doubt in the Veteran's favor, the Board granted an initial 30 percent rating for the neuralgia of the left hand. The Board found that the evidence did not support a rating higher than 30 percent, as the severity did not indicate severe incomplete paralysis of the ulnar nerve. The Board also noted that a separate noncompensable rating for residuals of the left hand injury under Diagnostic Code 5230 was not applicable for an increased rating.

Rationale

Veteran's left hand impairment approximated moderate incomplete paralysis of the ulnar nerve.; Symptoms include constant numbness, tingling, stiffness, and decreased strength.; Pain and paresthesias interfere with activities of daily living and work.

Full Decision Text

Citation Nr: 24014142
Decision Date: 04/03/24	Archive Date: 04/03/24

DOCKET NO. 19-22 522
DATE: April 3, 2024

ORDER

Entitlement to an initial 30 percent rating for neuralgia of the left hand is granted, effective January 5, 2019.

FINDING OF FACT

Throughout the appeal, the Veteran's left (major) upper extremity more closely approximated moderate incomplete paralysis of the ulnar nerve.

CONCLUSION OF LAW

Effective January 5, 2019, the criteria for a 30 percent rating for neuralgia of the left hand have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, 4.71a, Diagnostic Codes 8516, 5230.

?

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 2012 to January 2019.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2022, the Veteran presented sworn testimony at a hearing before the undersigned Acting Veterans Law Judge.  During the hearing, the Veteran testified that residuals of his service-connected left ring finger fracture involved his entire left (dominant) hand.  The Board re-characterized the matter on appeal, in light of the Veteran's testimony, to encompass all symptomatology associated with his service-connected disability.

This matter was previously before the Board in August 2022 and May 2023 when it was remanded for additional development.

In December 2023, the Veteran was granted service connection for neuralgia of the left hand, rated 10 percent disabling, effective January 5, 2019.  The Board has -re-characterized the claim to encompass the functional impairment of the Veteran's left hand, to include his service-connected neuralgia of the left hand and residuals of a left hand injury.  See Morgan v. Wilkie, 31 Vet. App. 162 (2019; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc), vacated on other grounds sub nom. Long v. McDonough, 38 F.4th 1063 (Fed. Cir. 2022).  

?

Entitlement to an initial rating in excess of 10 percent for neuralgia of the left hand.

The Veteran asserts that his left hand impairment is more severely disabling than currently rated and warrants a higher evaluation.  The Veteran is rated 10 percent disabling for the left upper extremity neuralgia under Diagnostic Code 8516, effective January 5, 2019.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1.  Where two disability ratings are potentially applicable, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

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, and severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity.  Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity.  38 C.F.R. § 4.124a.

The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end
 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, and severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity.  Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity.  38 C.F.R. § 4.124a.

The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated 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 preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree.  In addition, the preface states that 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.

In August 2022, the Board noted that the Veteran explained during his April 2022 hearing that the left finger fracture was stabilized with a metal plate that spans from the knuckle to the wrist.  In addition to painful limitation of ring finger motion, the disability results in constant numbness, tingling, stiffness, and decreased strength of the entire left hand, which worsens during flare-ups.  He further explained that these symptoms impair his ability to perform his duties as an electrician.  Hence, in August 2022, the Board remanded the claim to obtain a VA examination that would provide an "accurate and fully descriptive" picture of the Veteran's disability, to include any neurological symptoms, as well as additional functional impairment during flare-ups, so as to allow the Board to make a fully informed decision on the Veteran's claim.

The Veteran was afforded a new VA examination in August 2022.  As previously explained in the May 2023 remand, the Board has found the August 2022 VA examiner failed to conduct neurological testing of the left hand or to address the Veteran's statements regarding symptomatology associated with his service-connected disability at the April 2022 hearing.  The Board concluded the August 2022 remand directives were not fulfilled, and the matter was again remanded for compliance with the previous remand instructions.  On remand, the Board required the RO to obtain a medical opinion to determine any symptoms/secondary disability the Veteran may have and whether they are due to his service-connected left hand ring finger.

After a review of the evidence, the Board finds that an initial 30 percent rating, but no higher, is warranted throughout the appeal.

The Veteran was afforded a VA peripheral nerves examination in October 2023.  The Veteran reported that since he underwent surgical fixation with placement of a plate to stabilize his fractured left hand 4th metacarpal, he has experienced intermittent numbness and tingling.  He stated these symptoms occurred during work, which involves heavy tools, and his hand starts to tingle and become numb.  He added that he switches carrying tools to his right hand to avoid dropping them.  He also stated the numbness and tingling sometimes radiates into the forearm and he experiences pain with writing or using other small items that require a specific grip.  The Veteran exhibited moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left upper extremity.  The examiner found the Veteran exhibited mild incomplete paralysis of the ulnar nerve of the left hand.  The Veteran's dominant (major) extremity is his left upper extremity.  

The evidence above demonstrates that the Veteran's hand disability is more than "wholly sensory," as it also impairs his motor functioning.  Additionally
 that he switches carrying tools to his right hand to avoid dropping them.  He also stated the numbness and tingling sometimes radiates into the forearm and he experiences pain with writing or using other small items that require a specific grip.  The Veteran exhibited moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left upper extremity.  The examiner found the Veteran exhibited mild incomplete paralysis of the ulnar nerve of the left hand.  The Veteran's dominant (major) extremity is his left upper extremity.  

The evidence above demonstrates that the Veteran's hand disability is more than "wholly sensory," as it also impairs his motor functioning.  Additionally, the Veteran's competent and credible statements suggest that these manifestations are particularly harmful because they interfere with his activities of daily living.

Given the reported frequency and severity of his symptoms, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's left hand disability more closely approximates moderate incomplete paralysis of the ulnar nerve throughout the appeal period, warranting an initial 30 percent rating.  See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc).  

To the extent the Veteran seeks an initial rating in excess of 30 percent, the Board finds that the evidence is persuasively against such a finding.  The October 2023 VA peripheral nerves examination, and the post-service medical evidence of record, do not support a level of severity indicating the Veteran's left upper extremity has caused severe incomplete paralysis of the ulnar nerve.  Additionally, there is no evidence of complete paralysis of the ulnar nerve.  

The Board has also considered whether any other diagnostic codes related to disabilities of the hand or upper extremities would provide for a higher evaluation.  However, the evidence does not reflect that the Veteran would warrant a higher rating under a different diagnostic code.  The Veteran's left hand neuralgia disability rating compensates for the entirety of the Veteran's reported left hand neurologic symptomatology.

Specifically, the Veteran has been granted a noncompensable rating for his service-connected residuals of a left hand injury, effective January 5, 2019, pursuant to Diagnostic Code 5230.  See December 2018 Rating Decision.

Diagnostic Code 5230 provides for only a noncompensable rating for the ring or little finger, even when there is ankylosis of the joint.  Thus, any limitation of motion or painful motion of the Veteran's left ring finger under Diagnostic Code 5230 is noncompensable.  See Sowers v. McDonald, 27 Vet. App. 472 (2016).  In Sowers, the United States Court of Appeals for Veterans Claims held that since there is no compensable rating under Diagnostic Code 5230, any level of disability warrants a 0 percent rating as the diagnostic code's specific finding of no impairment in earning capacity from any limitation of motion of the ring finger. 

The Board observes 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011) provide that painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  However, there is no compensable minimum rating available under Diagnostic Code 5230.  Therefore, as a compensable rating is not available for the ring finger under Diagnostic Code 5230, the diagnostic code is of no benefit to the Veteran, and the currently assigned 0 percent rating is the maximum benefit permissible.   

In addition, there is no evidence of ankylosis or amputation of the left ring finger. Thus, Diagnostic Codes 5155 and 5227 are not applicable.  38 C.F.R. § 4.71a.

?

Accordingly, an initial 30 percent rating, and no higher, pursuant to Diagnostic Code 8516, is warranted for the Veteran's neuralgia of the left hand throughout the appeal period.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  

 

 

Jarrette A. Marley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ahmed, Zarar

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.