Citation Nr: 0900325 Decision Date: 01/06/09 Archive Date: 01/14/09 DOCKET NO. 05-31 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for right carpal tunnel syndrome, effective June 9, 2002. 2. Entitlement to an evaluation in excess of 0 percent for right carpal tunnel syndrome, effective November 1, 2002. 3. Entitlement to an initial evaluation in excess of 10 percent for left carpal tunnel syndrome, effective June 9, 2002. 4. Entitlement to an evaluation in excess of 0 percent for left carpal tunnel syndrome, effective November 25, 2003. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The veteran had active military service from July 1985 to February 1986 and October 2001 to June 2002. This matter comes to the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for right carpal tunnel syndrome assigning a 20 percent evaluation, effective June 9, 2002, and a 0 percent evaluation, effective October 29, 2002; and granted service connection for left carpal tunnel syndrome assigning a 10 percent evaluation, effective June 9, 2002, and a 0 percent evaluation, effective November 25, 2003. These ratings were confirmed in an April 2005 rating decision, although the effective dates for the reduced ratings were inexplicably altered. The Board has used the effective dates most favorable to the veteran and characterized the issues accordingly, based upon the holdings in this decision. FINDINGS OF FACT 1. Effective June 9, 2002, the right (major side) carpal tunnel symptoms include electromiographic (EMG) studies consistent with median neuropathy (carpal tunnel syndrome) with motor as well as sensory involvement and complaints of pain and numbness. 2. Effective November 1, 2002, the right carpal tunnel syndrome symptoms include findings of a right "trigger finger" involving the long finger locking up; complaints of pain, numbness, and weakness in the wrist and hand; some objective evidence of slight bilateral grip weakness, and thumb abduction and thumb opposition weakness; sensation diminished to light touch and pin; and an EMG study consistent with diagnosis of mild bilateral median neuropathy of the wrist. 3. Effective June 9, 2002, the left (minor) carpal tunnel syndrome symptoms include EMG findings consistent with bilateral median neuropathies at the wrist (carpal tunnel syndrome) with motor as well as sensory involvement and minimal subjective complaints. 4. Effective November 25, 2003, the left carpal tunnel syndrome symptoms include complaints of numbness, pain, and weakness in the left hand and wrist and an EMG study of mild bilateral median neuropathy at the wrist. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but no higher, for right (major) carpal tunnel syndrome are met, effective June 9, 2002. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2008). 2. The criteria for a disability rating of 10 percent, but no higher, for right (major) carpal tunnel syndrome are met, effective November 1, 2002. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2008). 3. The criteria for a disability rating higher than 10 percent for left (minor) carpal tunnel syndrome are not met, effective June 9, 2002. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2008). 4. The criteria for a disability rating of 10 percent, but no higher, for left (minor) carpal tunnel syndrome are met, effective November 25, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in September 2002, regarding the initial service connection claim for bilateral carpal tunnel syndrome. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate the claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. After the RO granted service connection for bilateral carpal tunnel syndrome in a September 2004 rating decision, the veteran filed a notice of disagreement with the assigned ratings in November 2004. The RO continued the ratings assigned in an April 2005 rating decision and June 2005 statement of the case. While the veteran was not provided a VA letter outlining the evidence necessary to substantiate an initial increased rating claim, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the veteran was granted service connection and assigned an evaluation and effective date, the Secretary had no obligation to provide further notice under the statute. Id. As such, any defect with respect to the content of the notice requirement was non-prejudicial. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the severity of the carpal tunnel syndrome. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO granted service connection for bilateral carpal tunnel syndrome in September 2004. The veteran contends that he is entitled to ratings higher than the ones assigned. His wife submitted statements in support of his claim in February 2003 noting her observation of the veteran's carpal tunnel symptoms. His representative also has submitted arguments on the veteran's behalf that he is at least entitled to a finding of mild symptoms for carpal tunnel syndrome under the relevant diagnostic criteria. 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The veteran's carpal tunnel syndrome is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515, which addresses the median nerve. A 10 percent rating is appropriate for both the major and minor hand when there is mild incomplete paralysis of the median nerve. For moderate incomplete paralysis, a 30 percent rating is assigned for the major hand and a 20 percent rating is assigned for the minor hand. For severe incomplete paralysis, a 50 percent rating is assigned for the major hand and a 40 percent rating is assigned for the minor hand. A 70 percent rating is assigned for complete paralysis of the median nerve on the major side with such manifestations such as the hand inclined to the ulnar side; the index and middle fingers more extended than normal; considerable atrophy of the muscles of the thenar eminence; the thumb in the plane of the hand (ape hand); pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to the palm; weakened wrist flexion; and pain with trophic disturbances. Complete paralysis of the minor hand is rated as 50 percent disabling. With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis for a particular 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. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The normal range of motion of the wrist is 0 to 70 degrees of dorsiflexion, 0 to 80 degrees of palmar flexion, 0 to 45 degrees of ulnar deviation, and 0 to 20 degrees of radial deviation. 38 C.F.R. § 4.71, Plate I. Right carpal tunnel syndrome The right carpal tunnel syndrome was initially rated as 20 percent disabling, effective June 9, 2002. An August 2002 private electromiographic (EMG) study shows findings consistent with bilateral median neuropathies (carpal tunnel syndrome) with motor as well as sensory involvement, which might be more severe on the right than the left. An October 2002 VA examination shows that the veteran is right-handed and was seen for hand difficulty. He was discharged from the military feeling pretty well (in June) but in July he noted that both hands felt numb, especially fingers one, two, and three. He also had pain in the wrists. This pain would often wake him up at night and it was very uncomfortable during the day. On physical evaluation, bending of the right wrist caused severe pain. There also was subjective hypesthesia in fingers one, two, and three down to the palm of the right hand. An October 2002 private medical record notes the veteran had a right carpal tunnel release surgery performed. A later October 2002 private medical record shows the veteran as status post right carpal tunnel release times eight days. The veteran did not have any pain at the wrist but still had some numbness; the numbness was "different" from preoperatively. He felt that this was resolving. On objective evaluation, the incision line was well-healed and sutures were removed without difficulty. There was no evidence of infection and the veteran had full range of motion of the fingers and wrists without apparent difficulty. The RO determined that these findings more closely approximated the criteria for moderate incomplete paralysis of the median nerve. Given that the veteran is right-handed, however, his rating should have been 30 percent for the major side, effective June 9, 2002, instead of the 20 percent assigned. A rating higher than 30 percent does not apply, as the medical evidence does not rise to the level of severe incomplete paralysis of the median nerve. While the veteran experienced numbness and pain in the hand and wrist, he could bend the wrist and fingers and after the carpal tunnel release surgery he had full range of motion of the fingers and wrists without difficulty. Following surgery in October 2002, the right carpal tunnel syndrome was assigned a 0 percent rating, initially effective October 29, 2002, and, in a later decision, effective November 1, 2002. The Board accepts the November 1, 2002, effective date as controlling. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A July 2004 VA patient contact notes shows complaints of a painful middle finger. The veteran stated that it was very painful to bend it and that the pain started in the middle knuckle of the finger radiating into the hand. In the morning, the hand was difficult to open up and at times the finger would lock up in a bent position and was painful. The veteran thought it was "trigger finger." A later July 2004 VA medical record shows the veteran stated he had awakened for the last two weeks with the right third finger flexed and painful release. The pain was getting more severe. He had a previous injury to the right third finger with a deep laceration with tendon visible but not cut. On objective evaluation, the right third finger had a vertical well-healed scar. There was no palpable abnormality in the palmar surface or at the joints on palpation. The flexion was without discomfort. There was pain on extension of the third finger. The assessment was right "trigger finger." An October 2004 VA orthopedic clinic note shows the veteran had been having some triggering of the right long finger since July 2004. He stated that it began spontaneously without trauma and occurred in the morning, sporadically. He had some discomfort in the proximal aspect of the right long finger and had not had any previous trigger finger releases. Physical examination of the right hand demonstrated no obvious skin deformities about the digits. He had some tenderness to palpation over the A1 pully on the right finger and there was some mild crepitance with flexion of the digit. He had no active triggering on the examination at that time, a normal sensory examination, and adequate perfusion to the digits. He had a well-healed carpal tunnel release scar on the proximal palm and palpable radial and ulnar pulses at the wrist. He also had full range of motion about the wrist. His grip strength was five out of five motor on the right side. The assessment was right long finger triggering. A February 2005 VA examination report shows intermittent symptoms ranging in severity from 0 to 5 out of 10. The frequency was activity dependent and the nature of the condition was numbness and some aching. The veteran when initially questioned about numbness reported that he had tingling but that this disappeared with the carpal tunnel release. He had residual numbness of the right 4th and 5th digits. Later on the examination, he shared that he felt numbness and tingling of all fingertips but most pronounced in the 4th and 5th digits bilaterally. He also reported weakness bilaterally and decreased grip strength. On physical examination, peripheral pulses were 2+ and there was some mild palmar erythema. The veteran had carpal tunnel release scars bilaterally in the volar aspect of the wrist on the right that measured 2 inches and were non-tender and non- adherent. Deep tendon reflexes were 2+ and symmetric for upper extremity biceps, triceps, and brachialis. Sensory examination was intact for light touch and proprioception. Motor examination revealed inconsistent strength in the upper extremities with give way strength. With repeat examination and prompting he was seen to improve. His grip strength appeared to be within normal limits with repeat testing but initially was 4/5. Subsequently it was 5/5. Opponens pollicis was 5/5; wrist flexion 5/5; wrist extension 5/5; and finger extension 5/5 with prompting. The veteran had some decreased finger abduction 4/5 but wrist ulnar deviation was within normal limits. Elbow extension was 5/5; and shoulder abduction and adduction were 5/5. The assessment was status post right carpal tunnel syndrome October 2002. The examiner noted that the most pronounced deficit of sensory symptoms in the hands was in the 4th and 5th digits and this would be innervated by the ulnar nerve not the median nerve. With carpal tunnel syndrome one would expect decreased sensation in the thumb, index, middle, half of the 4th finger nerves, and the 3rd finger. X-ray evaluation on the right wrist showed minimal degenerative changes between the trapezium and the first metacarpal. In April 2005, a VA medical record shows complaints of ongoing hand numbness, weakness, and decreased dexterity. He had severe numbness in the past associated with pain and underwent a carpal tunnel release in 2002 on the right wrist. This fully relieved the hand pain but the numbness, weakness, and dexterity problems had persisted. Distribution was described in the hand and fingers like he was wearing gloves. He had difficulty manipulating small objects. Symptoms were continuous but worse in the morning. Any general ongoing motions worsened the symptoms but no particular activities were identified. He felt that his grip strength was less but was unsure about whether his weakness and numbness had worsened over the last few years. On physical examination, there was normal muscle bulk and tone in the bilateral upper extremities and normal pulses in the upper extremities. The strength also was normal except for slight bilateral grip weakness, and thumb abduction and opposition weakness slightly worse right than left. Sensation was diminished to light touch and pin particularly in the median distribution bilaterally, left worse than right. Also in bilateral ulnar distribution left worse than right. He reported better sensation in the 5th digits than the 1st through 3rd bilaterally. His deep tendon reflexes were brisk in the bilateral upper extremities, 3+ in biceps, triceps, brachioradialis, and finger flexors. An EMG study showed electrodiagnostic evidence of bilateral median neuropathy by virtue of delayed sensory nerve peak latencies consistent with a diagnosis of mild bilateral median neuropathy of the wrist. The examiner noted that without prior/pre-operative studies, he could not state if this was a residual from the carpal tunnel surgeries. The medical evidence after November 1, 2002 shows findings of a right "trigger finger" involving the long finger locking up and complaints of pain, numbness, and weakness in the wrist and hand. X-ray evaluation on the right wrist showed minimal degenerative changes between the trapezium and the first metacarpal but this has not been associated with the right carpal tunnel syndrome. Physical examination mostly showed normal motor and sensory examinations through February 2005. However, the April 2005 medical record showed increased subjective complaints of hand numbness and weakness and physical examination showed grip weakness, thumb abduction and opposition weakness, diminished sensation in the median distribution, and electrodiagnostic evidence consistent with a diagnosis of mild median neuropathy of the wrist. These findings support at least a 10 percent evaluation under Diagnostic Code 8515. Even though the April 2005 examiner noted that without prior/pre-operative studies, he could not state if EMG findings were residuals from the carpal tunnel surgeries, all doubt is resolved in the veteran's favor. The regulations specifically provide that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Given that the nature of the veteran's symptoms have been relatively consistent since the time of the decrease to 0 percent, a 10 percent evaluation is warranted, effective November 1, 2002. Left carpal tunnel syndrome Effective June 9, 2002, the left carpal tunnel syndrome is rated as 10 percent disabling. An August 2002 EMG study shows findings consistent with bilateral median neuropathies at the wrist (carpal tunnel syndrome) with motor as well as sensory involvement. An October 2002 VA examination report showed complaints of occasional tingling in the left hand. His left hand otherwise felt "pretty good." On physical evaluation, there was some slight pain on the left wrist. These findings do not show more than mild incomplete paralysis of the median nerve on the left. The veteran's subjective complaints were minimal during this time frame. Therefore, a rating higher than 10 percent is not warranted effective June 9, 2002. Following surgery in November 2003, a 0 percent rating is assigned for left carpal tunnel syndrome, effective November 25, 2003, based on a private orthopedic record reflecting status post left carpal tunnel release and excision of the left ring finger mass. He had full range of motion of the fingers. A February 2005 VA examination report shows intermittent symptoms ranging in severity from 0 to 5 out of 10. The frequency was activity dependent and the nature of the condition was numbness and some aching. The veteran when initially questioned about numbness reported that he had tingling but that this disappeared with the carpal tunnel release. He had residual numbness of the left 4th and 5th digits. Later on the examination, he shared that he felt numbness and tingling of all fingertips but most pronounced in the 4th and 5th digits bilaterally. He also reported weakness bilaterally and decreased grip strength. On physical examination, peripheral pulses were 2+ and there was some mild palmar erythema. The veteran had carpal tunnel release scars bilaterally in the volar aspect of the wrist on the right, measuring 2 inches on the right, non-tender and non-adherent. Deep tendon reflexes were 2+ and symmetric for upper extremity biceps, triceps, and brachialis. Sensory examination was intact for light touch and proprioception. Motor examination revealed inconsistent strength in the upper extremities with give way strength. With repeat examination and prompting he was seen to improve. His grip strength appeared to be within normal limits with repeat testing but initially was 4/5. Subsequently it was 5/5. Opponens pollicis was 5/5; wrist flexion 5/5; wrist extension 5/5; and finger extension 5/5 with prompting. The veteran had some decreased finger abduction 4/5 but wrist ulnar deviation was within normal limits. Elbow extension was 5/5; and shoulder abduction and adduction were 5/5. The assessment was status post right carpal tunnel syndrome October 2002. The examiner noted that the most pronounced deficit of sensory symptoms in the hands was in the 4th and 5th digits and this would be innervated by the ulnar nerve not the median nerve. With carpal tunnel syndrome one would expect decreased sensation in the thumb, index, middle, half of the 4th finger nerves, and the 3rd finger. X-ray evaluation on the left wrist showed mild degenerative changes at the joint between the left trapezium and the 1st metacarpal. An April 2005 VA medical record shows complaints of ongoing hand numbness, weakness, and decreased dexterity. He had severe numbness in the past associated with pain and underwent a carpal tunnel release in 2003 on the left wrist. This fully relieved the hand pain but the numbness, weakness, and dexterity problems had persisted. Distribution was described in the hand and fingers like he was wearing gloves. He had difficulty manipulating small objects. Symptoms were continuous but worse in the morning. Any general ongoing motions worsened the symptoms but no particular activities were identified. He felt that his grip strength was less but was unsure about whether his weakness and numbness had worsened over the last few years. On physical examination, there was normal muscle bulk and tone in the bilateral upper extremities and normal pulses in the upper extremities. The strength also was normal except for slight bilateral grip weakness, and thumb abduction and opposition weakness slightly worse right than left. Sensation was diminished to light touch and pin particularly in the median distribution bilaterally, left worse than right, also in bilateral ulnar distribution left worse than right. He reported better sensation in the 5th digits than the 1st through 3rd bilaterally. His deep tendon reflexes were brisk in the bilateral upper extremities, 3+ in biceps, triceps, brachioradialis, and finger flexors. An EMG study showed electrodiagnostic evidence of bilateral median neuropathy by virtue of delayed sensory nerve peak latencies consistent with diagnosis of mild bilateral median neuropathy of the wrist. The examiner noted that without prior/pre-operative studies, he could not state if this was a residual from the carpal tunnel surgeries. The medical evidence since November 25, 2003 supports continued findings of mild incomplete paralysis of the median nerve. The veteran has had ongoing complaints of numbness, pain, and weakness in the left hand and wrist and an EMG study in 2005 shows mild bilateral median neuropathy at the wrist. While the 2005 examiner noted that he could not state this was related to the carpal tunnel surgeries without the post and pre operative studies, all doubt is resolved in the veteran's favor. The x-ray findings of mild degenerative changes in the wrist have not been attributed to the left carpal tunnel syndrome. Other than the staged ratings assigned, the level of impairment in the bilateral wrists and hands has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for the ratings assigned. Therefore, any additional application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's disability picture also has not been rendered unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluations. 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran reported on the April 2005 VA examination that he had been dropping tools at work and that his supervisors were getting upset with him because of this. He also submitted a copy of the leave he had used with his job at the U.S. Postal Service, mostly under the Family and Medical Leave Act, and a copy of his job description as a Maintenance Mechanic with Mail Processing Equipment. The veteran's carpal tunnel symptoms are shown to have an effect on the veteran's job but the veteran is still shown to be able to maintain employment. The evidence does not rise to the level of marked interference with employment. The carpal tunnel syndrome also has not resulted in frequent periods of hospitalization. The current schedular criteria adequately compensate the veteran for the current nature and extent of severity of the disability at issue. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to an initial evaluation of 30 percent, but no higher, for right carpal tunnel syndrome, effective June 9, 2002 is granted, subject to the rules and payment of monetary benefits. Entitlement to an initial evaluation of 10 percent, but no higher, for right carpal tunnel syndrome, effective November 1, 2002 is granted, subject to the rules and payment of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent for left carpal tunnel syndrome, effective June 9, 2002 is denied. Entitlement to an initial evaluation of 10 percent, but no higher, for left carpal tunnel syndrome, effective November 25, 2003 is granted, subject to the rules and payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs