Citation Nr: 1002001 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 07-11 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable disability rating for right carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to July 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for right carpal tunnel syndrome, and assigned a 0 percent, noncompensable disability rating. The Veteran currently resides within the jurisdiction of the Montgomery, Alabama RO. In November 2008, the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. In February 2009, the Board remanded the case for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT From August 1, 2004, right carpal tunnel syndrome has been manifested by wrist and hand pain and fatigability, and dysesthesia at the surgical scar, consistent with mild incomplete paralysis with the median nerve. CONCLUSION OF LAW From August 1, 2004, right carpal tunnel syndrome has met the criteria for a 10 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the RO provided VCAA notice in letters issued in March 2004, December 2005, and March 2006. In those letters, the RO advised the Veteran what information and evidence was needed to substantiate claims for service connection and/or higher disability ratings. The RO informed the Veteran what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The RO also advised the Veteran how VA determines disability ratings and effective dates. The Veteran was asked to provide additional information concerning medical treatment in an April 2009 letter. The case was last adjudicated in an October 2009 supplemental statement of the case. However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2008). Thus, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service- connected disability fall under the category of "original claims"). The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post service treatment records, VA examination reports, and the transcript of the November 2008 Travel Board hearing. Here, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran actively participated in the claims process by submitting written argument, testifying at a hearing, and reporting for VA medical examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). 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. Rating for Right Carpal Tunnel Syndrome The Veteran received treatment during service for carpal tunnel syndrome in both wrists. He underwent carpal tunnel release surgery on the left wrist in January 2003 and on the right wrist in February 2003. In 2004, in preparation for retirement from service, the Veteran submitted a claim for VA disability compensation for multiple disorders, including residual median neuropathy in both wrists. The Veteran had a VA medical examination in May 2004. He reported having pain in both wrists. The examiner's diagnoses included status post bilateral carpal tunnel release. X-rays of the Veteran's right wrist showed degenerative changes. The examiner also included a diagnosis of degenerative joint disease of the right wrist. In a December 2004 rating decision, the RO granted service connection for status post carpal tunnel release in the left and right wrists. The RO assigned a 10 percent disability rating for that condition in the left wrist, and a 0 percent rating for that condition in the right wrist. The RO also granted service connection for degenerative joint disease of the right wrist, and assigned a 0 percent rating for that disorder. In November 2005, the Veteran submitted a notice of disagreement, initiating an appeal of the 0 percent rating for status post right carpal tunnel release. As the Veteran is separately rated for his left wrist carpal tunnel syndrome and his right wrist degenerative joint disease, symptomatology from those disorders may not be considered for purposes of evaluating his right wrist carpal tunnel syndrome. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. An evaluation of the level of disability present also includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on the functional abilities. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2009); see DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is right handed. The RO evaluated the Veteran's carpal tunnel syndrome under 38 C.F.R. § 4.124a, Diagnostic Code 8515, for complete or incomplete paralysis of the median nerve, which affects parts of the wrist, hand, and fingers. Under that code, complete paralysis of that nerve in the dominant, or major, upper extremity is rated as 70 percent disabling. Incomplete paralysis of the major median nerve is rated at 50 percent if severe, 30 percent if moderate, and 10 percent if mild. Medical records from the Veteran's service address the condition of his wrists and hands. In December 1999, the Veteran sought treatment for paresthesia in both hands, particularly in the third digits. The treating practitioner's impression was median nerve paresthesia. In November 2002, the Veteran reported a three year history of pain and weakness in his hands, worse in the left hand. He underwent EMG nerve conduction studies, which showed evidence of bilateral carpal tunnel syndrome. In a December 2002 orthopedic consultation, the Veteran reported that for more than two years he had experienced numbness in both hands and right wrist pain. As noted above, the Veteran underwent carpal tunnel release surgery on the on the right wrist in February 2003. Occupational therapy notes from March 2003 reflect the Veteran's report of pain in his hands while lifting and while using tools such as a hammer. In the May 2004 VA examination, the Veteran reported that numbness and tingling in his hands had begun during service. He stated that after carpal tunnel release surgeries in 2003 numbness in his left hand improved, but his right hand symptoms worsened. He related having daily pain in his right wrist, across the dorsal aspect of the wrist and the thenar prominence of the hand. He indicated that numbness had resolved, and that he did not have swelling of the hands or wrists. The examiner found that the Veteran's wrists had full ranges of motion, without clinical findings. On neurological examination, the left wrist had a positive Tinel's sign. No abnormal findings of the right wrist were reported. Right wrist x-rays showed joint space narrowing and degenerative changes, with a projecting bony density consistent with an old fracture fragment. The examiner's diagnoses included status post bilateral carpal tunnel release with mild residual left neuropathy, and degenerative joint disease of the right wrist. In an April 2007 substantive appeal, the Veteran wrote that his post-service employment was as a systems analyst for a computer software company. He stated that he used a computer, including a mouse and a touchpad. He reported that he had increased problems with his right wrist and hand when using a mouse or touchpad. He indicated that those tasks led to tingling, pain, and swelling in the back of his right hand and inside of his right wrist. He reported that he used a gel pad wrist support, and switched the mouse to his left hand, but that even short use of a mouse with either hand caused extreme discomfort. The Veteran also reported that he had trouble gripping pens, tools, or cooking utensils in his right or left hands. He stated that tingling, pain, and swelling developed after a few minutes of such activities. He indicated that his right hand problems made him unable to hold a pen correctly and caused him to drop things. He stated that he had to massage his hands to address the pain and tingling. He indicated that the scar from the right hand surgery was extremely sensitive to touch, and sometimes painful. He asserted that the symptoms in his wrists and hands limited what he was able to do at work and at home. Notes from VA outpatient treatment in July 2008 reflect the Veteran's report of increased pain in his right wrist, described as feeling like a return of carpal tunnel syndrome. In the November 2008 Travel Board hearing, the Veteran reported right wrist pain that was constant, and that varied in severity depending on use. He stated that he had more severe pain when using a mouse or keyboard, which were major activities in his job. He indicated that, due to pain in his hand, he could not hold a pen or pencil in a normal position. He stated that when he cooked at home, he could not grip utensils for long, as trying to hold utensils increased the pain in his hand. He indicated that he had difficulty bringing his thumb and fingers together, and that his right hand had a bump that was not on his left hand. He stated that the scar from his right hand surgery was very sensitive, and produced severe pain if it was touched. He reported that the current symptoms in his right wrist and hand had been present since service, and had not improved since the surgery during service. In the February 2008 remand, the Board instructed the RO/AMC to obtain any records of treatment for carpal tunnel syndrome that the Veteran identified. The Board also instructed the RO/AMC to provide the Veteran for a new VA examination of his right wrist and hand. After the remand, VA medical records, including more recent records, were added to the Veteran's claims file. In March 2009, the Veteran had a VA orthopedic examination that addressed a different condition. The examination included a sensory examination of the Veteran's spine and upper and lower extremities. Sensory examination of the right upper extremity was normal. Reflex examination of the brachioradialis was also normal. Also in March 2009, the Veteran informed a VA primary care physician that he had burning pain on the dorsum of his right hand and decreased strength in his right thumb. He stated that his right hand had an abnormal bony prominence that had no counterpart on his left hand. The physician observed that certain right wrist bones were more prominent than those in the left wrist, but found that there was no deformity or alteration in range of motion. The physician stated that the Veteran's right wrist pain might be related to his previously diagnosed carpal tunnel syndrome. The Veteran had a VA peripheral nerves examination, to address his right wrist disability, in June 2009. He reported that, since the right carpal tunnel release surgery, the scar had electricity-like dysesthesia when it was touched. He stated that he felt heat and aches in the dorsum of his right wrist and hand when he used a keyboard. He indicated that at the time of the examination his right wrist and hand felt swollen and tight. He reported that the dyesthesia at the scar had remained the same over time, while the soreness and heat in the wrist and hand had worsened over time. He related that the grasp of his right hand was worse than that of the left, and that he had difficulty stirring a pot or swinging a hammer with his right hand. The examining physician found that the Veteran's right hand had normal strength and sensory function. The examiner noted a positive Tinel's sign over the surgical scar on the right hand. The examiner indicated that nerve conduction studies performed earlier in 2009 had shown very mild bilateral carpal tunnel syndrome. The examiner diagnosed a neuroma at the surgical scar. The examiner stated that the Veteran might have tendonitis or soft tissue inflammation that caused the symptoms at the dorsum of the right hand. The Veteran reports pain in his right wrist and hand that is worse with activity, and that considerably limits his endurance at work and household tasks. He also has sensitivity at the surgical scar that causes sharp discomfort when the scar is touched. The effects of the right wrist and hand symptoms, when considered together, are consistent with mild incomplete paralysis of the median nerve, and as such warrant a 10 percent rating under Diagnostic Code 8515. The Veteran reports that some of the symptoms, particularly the sensitivity at the scar, have been present since the surgery during service. The VA examination in May 2004 did note pain across the thenar prominence of the right hand. Thus, resolving all doubt in the Veteran's favor, the Board find the record supports a 10 percent rating effective with the August 1, 2004, initial grant of service connection. The Veteran reports that his right wrist and hand symptoms cause him to pause and rest and to adjust the way he performs tasks. However, the May 2004 examination reflected no objective findings for the right wrist, and normal strength and sensory function was noted on the 2009 examinations, with only very mild carpal tunnel syndrome shown on nerve conduction studies. Thus, the subjective complaints, when considered with the objective findings, are not comparable to moderate or severe incomplete paralysis of the median nerve. Therefore, a rating higher than 10 percent is not warranted. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER From August 1, 2004, a 10 percent disability rating for right carpal tunnel syndrome is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs