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Board denies a higher rating for upper extremity condition, fails to provide reasons for choice of diagnostic code

Board denies a higher rating for upper extremity condition, fails to provide reasons for choice of diagnostic code

Summary

The Veteran served honorably in the United States Army from June 1985 to March 1992.  She injured her left arm during service, and experienced a chronic left tricep tear as well as discomfort with movement.  The Regional Office granted service connection for recurrent left triceps tendon strain/tendonitis in 1992.

In 2006, the Veteran filed a claim for an increased rating for her left elbow condition with pain in her knuckles, wrist, and shoulder.  At that point, the pain in the left upper extremity was excruciating.  A medical officer advised her not to use her left hand even to move the computer mouse.  By the end of the year, she was in so much pain that she could hardly do anything.  The RO increased her rating from 10% to 30% in January 2008.  The Veteran appealed this denial to the Board.

 

Board denies increased rating for left upper extremity condition

After remanding the case a few times for additional development, the Board denied the Veteran a rating in excess of 30% for left radial tunnel syndrome.  The Board applied diagnostic code 8514 which contemplates paralysis of the radial nerve.  It found that the Veteran’s left upper extremity condition was best characterized as “moderate” since there was only one instance of more than wholly sensory impairment in the record.  With CCK’s help, the Veteran appealed this denial to the Court of Appeals for Veterans Claims.

 

Court agrees with CCK’s arguments

CCK argued that the Board failed to consider whether she could obtain a higher rating under a different diagnostic code.  In addition, the Board failed to consider favorable evidence of record in finding that the disability was only “moderate.”

The Court agreed with the Veteran’s arguments, finding that the Board did not provide any explanation for its selection of diagnostic code 8514, and therefore failed to meet the heightened reasons or bases requirement for rating by analogy.  Additionally, the Court agreed that the evidence of record directly contradicted the Board’s finding that the Veteran’s non-sensory symptomatology was only observed on one occasion.  The Court listed six medical records documenting non-sensory symptoms, and ordered the Board to consider this evidence on remand.  The Court thus vacated the Board’s decision and remanded the claim for readjudication consistent with the decision.

Category: Court Wins

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