BVA9504222 DOCKET NO. 92-05 283 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased evaluation for neuropraxic nerve injury of the right hand, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to May 1979. This appeal arises from a June 1989 rating decision of the Portland, Oregon, Regional Office (RO). That rating decision assigned a 20 percent evaluation for laceration scar, neck of first metacarpal with probable neuropraxic nerve injury. The RO, by rating decision of June 1990, proposed to sever service connection for neuropraxic nerve damage to the right hand and as a result reduced the evaluation from 20 percent to noncompensable. A hearing was held at the RO in September 1990 and the hearing officer entered his decision recommending severance later that month. By rating decision of September 1990, the RO severed service connection for neuropraxic nerve damage to the right hand (major) and continued a noncompensable evaluation for a laceration scar of the neck of the right first metacarpal. In June 1991, the Board of Veterans' Appeals (Board) restored service connection for a neuropraxic nerve injury to the right hand and denied an increased (compensable) evaluation for a laceration scar of the neck of the right first metacarpal. By rating decision of July 1991, the RO, noting that the Board did not decide the issue of the proper evaluation of this disability, assigned a 20 percent evaluation to the neuropraxic nerve injury of the right hand and continued a separate noncompensable evaluation for the laceration scar. A supplemental statement of the case covering only the issue of increased rating for neuropraxic nerve injury of the right hand was issued in August 1991. The Board remanded the case in June 1993 to afford the veteran a VA neurologic examination. Subsequently, a rating decision of August 1994 continued the 20 percent evaluation. The veteran continues to contend that the neurologic deficits warrant a higher evaluation. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has weakness in his right hand and loss of strength in the muscles of his thumb which makes it difficult to grip properly. He contends that he is entitled to a higher disability evaluation based on his functional loss. His representative requests that all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran's claim for an evaluation of 40 percent, and no higher, for neuropraxic nerve injury of the right hand. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's neuropraxic nerve injury of the right hand is manifested by decreased grip strength, pincer strength, dexterity, and fine motor movements as well as minimal weakness of intrinsic hand muscles and of wrist flexion, but not by any fixed limitation of motion to suggest ankylosis. 3. The regular schedular standards are adequate to rate the disability and the case does not present an exceptional or unusual disability picture which renders the application of the regular schedular standards impractical. CONCLUSIONS OF LAW 1. The schedular criteria for a 40 percent evaluation for neuropraxic nerve injury of the right hand have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.7, Code 8512 (1994). 2. Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran was involved in a motor vehicle accident in March 1973 while on active duty. He injured his right thumb and forefinger. Service connection for nerve damage to the right hand was granted in June 1989. A 20 percent evaluation was assigned under code 8512 from January 1989. VA clinic reports continued to demonstrate mild muscle atrophy to the right thumb, with dysfunction of the thumb. An electromyogram (EMG) was done in October 1989. It revealed possible mild right carpal tunnel syndrome. In March 1990, a VA neurological review was conducted. The veteran was present for the review and stated that he had sustained no subsequent right upper extremity trauma since the 1973 accident, and that he had no unusual hobbies or activities which called for repetitive motions of the hand and would allow for a possible carpal tunnel-like injury. The examiner stated that the most likely scenario was that the veteran had sustained a progressive wasting condition secondary to nerve damage which occurred as a result of the motor vehicle accident in 1973. Another neurological review was conducted in May 1990, without the veteran present. The reviewer stated that the record did not seem to indicate that the veteran's current condition was due to the injury and attributed the muscle wasting to compression of the median nerve as it passed through the hand through the carpal tunnel. In September 1990, the RO severed service connection for neuropraxic nerve damage to the right hand. In June 1991, the Board restored service connection, holding that the June 1989 rating decision which granted service connection was not clearly and unmistakably erroneous. The Board subsequently remanded the case in June 1993 to provide the veteran a neurologic examination to assess the current extent of the service-connected neurologic residuals. The veteran was examined by the VA neurologic expert on two occasions, in February and March 1994. The RO stated that the VA neurologist's opinion was in conflict with the May 1990 neurologic review and scheduled the veteran for a neurologic board to reconcile the findings. The veteran did not report to the scheduled board examination. By decision of August 1994, the RO stated it would base its rating on the evidence of record, and continued the 20 percent evaluation. The Board notes that normally when a veteran does not report for a scheduled examination in an increased rating case, the claim must be denied. 38 C.F.R. § 3.655(b) (1994). Therefore, the RO's decision to rate the claim on the record following the veteran's failure to report was improper. Beyond that, however, in reviewing the RO's actions with respect to this claim, it appears that improper consideration was given to the May 1990 neurologic review report. The issue at this time is the extent of the neurologic pathology, not its etiology. Since the Board reinstated service connection for the veteran's neuropraxic nerve injury, any further consideration of the May 1990 report was improper. All current neurologic manifestations are service connected. As the 1994 VA neurologic examinations showed the current neurologic deficits, there was no need for additional clarification. The Board notes that the veteran duly reported for two VA neurologic examinations. Since the RO's scheduling of the neurologic board was neither proper nor necessary, the veteran's failure to report for that appointment should not be held against him. The Board is of the opinion that the veteran's claim should be considered on the evidentiary record and that the 1994 neurologic examinations provide an adequate basis on which to evaluate his disability. The veteran contends that he is entitled to a 40 percent evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Musculoskeletal disorders are rated with consideration of the resulting functional impairment. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.42 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). The veteran's neuropraxic nerve condition is currently evaluated as 20 percent disabling under Diagnostic Code 8512. That evaluation contemplates mild incomplete paralysis of a nerve of the lower radicular group. The next higher rating under that code section, 40 percent, contemplates moderate incomplete paralysis of a nerve of the lower radicular group. A 60 percent evaluation requires severe incomplete paralysis of the lower radicular group. 38 C.F.R. Part 4, Diagnostic Code 8512 (1994). Higher ratings may also be assigned based on limitation of motion of the digits of the hand under Codes 5220 through 5223. See 38 C.F.R. Part 4, Codes 5220, 5221, 5222, 5223 (1994). The veteran was examined by a VA neurologist in February 1994. The veteran reported that he had difficulty gripping items with the thumb and forefinger of his right hand. He stated that he gripped a pen between his second and third fingers, causing effortful handwriting which leads to cramping and fatigue in the hand. He has difficulty buttoning buttons and using a nail clipper. He denied numbness, except in the tip of his right thumb. Achiness of the thenar eminence occurred mostly in cold weather after he used a hammer. He complained of weakness in the hand. On examination, there was negative Tinel's sign. There was atrophy of the thenar eminence, and a well-healed incision on the radial aspect of the right hand and wrist. Forearm circumferences were equal and there were no fasciculations. Motor examination revealed 5/5 strength in the trapezius, rhomboids, serratus anterior, supraspinatus, latissimus dorsi, biceps, triceps, deltoid, brachioradialis, extensor carpi radialis longus, supinator, flexor carpi ulnaris, extensor digitorum, pronator teres, first lumbrical, flexor pollicis longus, and flexor digitorum superficialis. Strength was 5-/5 in the abductor pollicis brevis, 4+/5 in the extensor pollicis brevis and adductor pollicis and plexor digitorum profundus #1. Strength was 4/5 in the extensor pollicis longus, opponens on the right. The veteran had normal tone and bulk, except for the thenar eminence. There was no pronator drift. Fine motor movements were somewhat slow on the right. There was decreased pincer grasp on the right, 4+/5. Grip strength by ergometry was 180-220 pounds on the right and 300 pounds consistently x3 on the left. Reflexes were 2+ and symmetric at the biceps and triceps, and 1 at the brachioradialis and finger flexors. Sensory examination was intact except for the webbed space between thumb and forefinger on the dorsal aspect of the right hand, which was decreased to cold and pinprick sensation, and the tip of the right thumb. Two point tactility was 10 millimeters on the tip of the right thumb, but 6 millimeters on the other digits. He had intact vibratory sensation, position sense and intact graphesthesia on the palms. The impression was weakness of the thenar-innervated muscles which did not fall into a specific pattern of median or ulnar radial nerve injury. The examination was in no way embellished by the veteran. Nerve conduction velocity EMG studies were recommended. In March 1994, the veteran was seen by the same examiner. Nerve conduction velocity studies of the right upper extremity were conducted. Distal latencies, conduction velocities and amplitudes were normal. EMG study of the right first dorsal interosseous, right abductor pollicis brevis, right flexor carpi ulnaris and right extensor pollicis longus were normal. The diagnosis was weakness of multiple muscles which did not correspond to one specific nerve. It was likely that the veteran had an injury which affected both muscle and tendon directly, as well as nerve injury. The thumb is primarily affected, which decreased his grip strength, pincer strength, dexterity, and fine motor movements. There was also minimal weakness of intrinsic hand muscles and of wrist flexion. There was no fixed limitation of motion to suggest ankylosis. The Board is of the opinion that the veteran's neuropraxic nerve injury of the right hand more nearly approximates a moderate level of impairment consistent with a 40 percent evaluation under Code 8512. This is based on the functional impairment of the thumb, with decreased grip and pincer strengths, dexterity and fine motor movements shown on examination. The severe level of incomplete paralysis which would entitle the veteran to a 60 percent evaluation is not demonstrated. 38 C.F.R. Part 4, § 4.7, Code 8512 (1994). There is also no demonstration of the limitation of digit motion or ankylosis which would entitle the veteran to a higher evaluation under codes 5220 through 5223. 38 C.F.R. Part 4, Codes 5220, 5221, 5222, 5223 (1994). The schedular evaluations are adequate to compensate the veteran's right hand disability. This is not an exceptional case where the schedular evaluations are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. 38 C.F.R. §§ 3.321(b)(1) (1994). ORDER An evaluation of 40 percent, and no higher, for neuropraxic nerve injury of the right hand is granted, subject to the criteria governing the payment of monetary awards. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.