Citation Nr: 1035622 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 08-27 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for carpal tunnel syndrome of the right hand and wrist. 2. Entitlement to in initial rating in excess of 10 percent for carpal tunnel syndrome of the left hand and wrist. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant; Appellant's spouse ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to June 1969 and from August 1970 to August 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and 10 percent ratings each for right and left carpal tunnel syndrome. The Veteran testified before the Board sitting at the RO in April 2010. Testimony at the hearing was confined to the two issues on the title page. A transcript of the hearing is associated with the claims file. The Veteran also has an appeal before the Board from a decision that denied service connection for migraine headaches and a vision disorder. A hearing on these issues was held by another Veterans Law Judge in July 2009. No evidence relevant to these issues was received at the hearing before the undersigned in April 2010. Therefore, a separate decision will be issued by the Judge who presided at the earlier hearing for these issues. 38 C.F.R. § 20.707 (2009). FINDINGS OF FACT 1. The Veteran is left handed. 2. The Veteran's bilateral carpal tunnel syndrome is manifested by morning stiffness, weakness, and loss of grip strength. The Veteran has difficulty pushing or pulling with the hands, holding objects, and removing caps from containers. The Veteran is able to close the fingers of both hands to the palm and oppose both thumbs with the fingers. Nerve conduction and electromyography studies showed amplitude, sensor velocity, and motor latencies. X-rays showed minimum or mild degenerative joint disease of the hands. CONCLUSIONS OF LAW 1. The criteria for an initial or staged rating in excess of 10 percent for carpal tunnel syndrome of the right hand and wrist have not been met at any time during the period covered by this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.50, 4.59, 4.71a, Diagnostic Code 5003, 4.124a, Diagnostic Code 8515 (2009). 2. The criteria for an initial or staged rating in excess of 10 percent for carpal tunnel syndrome of the left hand and wrist have not been met at any time during the period covered by this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.50, 4.59, 4.71a, Diagnostic Code 5003, 4.124a, Diagnostic Code 8515 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and; (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In cases where 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 v. Nicholson, 19 Vet. App. 473, 490- 91 (2006). Accordingly, no further duty to notify was applicable once service connection had been granted. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served as a U.S. Navy yeoman and retired at the rank of Yeoman First Class. He contends that his bilateral carpal tunnel syndrome is more severe than is contemplated by the current ratings. 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. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Since the Veteran timely appealed the rating initially assigned for his disability, the Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath, 1 Vet. App. at 592. Evaluating the disability under several diagnostic codes, the Board considers the level of impairment of the ability to engage in ordinary activities, including employment, and assesses the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Diseases of the peripheral nerves and their residuals are rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis, whether due to varied level of a nerve lesion or to partial regeneration. When involvement is wholly sensory, the rating should be for a mild or at most moderate degree. Consideration is given to deformities, inability to extend or flex fingers or wrist or make a fist, and defective opposition or abduction of the thumb. Ratings are for unilateral involvement. For incomplete paralysis of the median nerve, a ten percent rating is warranted for mild symptoms. A 30 percent rating is warranted for moderate symptoms on the dominant side and 20 percent on the non-dominant side. A 50 percent rating is warranted for severe symptoms on the dominant side and 40 percent on the non-dominant side. Higher ratings are warranted for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Similar but somewhat lower rating criteria are provided for incomplete paralysis of the ulnar nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8516. The Board will apply the criteria most favorable to the Veteran. Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups will warrant a 10 percent rating. Absent limitation of motion, a 20 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In a February 2008 statement, the Veteran reported that his duties as a Navy yeoman involved extensive use of manual and electric typewriters. Service treatment records showed that the Veteran sought treatment in January 1983 for right hand pain, weakness, and loss of grip strength. In an April 1984 retirement physical examination, the Veteran reported that he was left handed and experienced a history of right index finger pain. The examiner noted no upper extremity abnormalities. The Veteran further noted in his statement that he was diagnosed with arthritis in a November 1984 VA examination shortly after retirement. Records of this examination showed that the Veteran reported morning stiffness at the base of the fingers in both hands. X-rays of the hands were normal. The examiner diagnosed arthritis only in the large toe of the left foot. However, in October 2001, a VA primary care examiner noted the Veteran's report of right and left thumb pain for the previous three months. X-rays of the hands showed minimal bilateral degenerative joint disease. In March 2007, the Veteran underwent nerve conduction studies at a private clinic. The electromyographer noted deficiencies in potential amplitude, sensory conduction velocities, and motor distal latencies. The evaluator concluded that the study results were abnormal and suggested mild polyneuropathy in both upper extremities with the possibility of superimposed bilateral carpal tunnel syndrome. The same month, a magnetic resonance image of the cervical spine showed mild to moderate cervical spondylosis. In July 2007, the Veteran's private physician reviewed the test results and diagnosed possible carpal tunnel syndrome. In an October 2007 letter, a private neurosurgeon also concurred in the diagnoses of cervical spondylosis and carpal tunnel syndrome. In June 2008, a VA orthopedic physician noted the Veteran's service history of administrative work, the onset of right hand pain in January 1983, and a decrease in right hand strength and dexterity. On examination, the Veteran was able to close fingers to the palm and oppose the thumb to all fingers with full finger extension of both hands. The physician noted mild to moderate weakness in pushing and pulling especially with the right hand. The physician noted that the Veteran had no difficulty handling documents and papers showing no loss of dexterity. X-rays of both hands were normal with no osseous structures or loss of joint spacing. The physician noted that the Veteran was unemployed and concluded that the impact of the bilateral hand disability was moderate for recreation and sports and mild for all other daily activities. In a September 2008 letter, the private neurosurgeon from 2007 noted that the Veteran experienced a cerebrovascular accident with residual left-sided weakness. He did not note the date of the event and the claims file contains no relevant treatment records. The neurosurgeon also noted that the Veteran was under treatment for diabetes and hypertension. The neurosurgeon again referred to the nerve testing and imaging and diagnosed mild sensory polyneuropathy affecting both upper extremities. In a January 2009 letter, the private primary care physician from 2007 noted that the Veteran experience hyperesthesia or tingling sensation in both hands and fingers and frequently dropped objects. He did not note the presence of hand tremors. On examination, the physician noted that the Veteran was unable to fully extend all fingers on both hands. In February 2009, a VA physician noted a review of the medical records including the 2007 nerve testing and imaging. The physician did not perform another examination but provided an opinion that the Veteran's carpal tunnel syndrome was at least as likely as not related to his typing duties in service. In October 2009, another private physician provided an instructional report on the general nature and causes of carpal tunnel syndrome. He did not perform an examination of the Veteran or provide clinical comments. However, he concluded that the Veteran could no longer engage in any income generating employment as a result of low back and bilateral carpal tunnel syndrome, the latter precluding any work requiring prolonged use of a typewriter or computer. The physician did note that wrist support devices, injections, and surgery can be used to obtain relief and restore function. In December 2009, a VA physician noted that additional electromyography and nerve conduction studies were obtained that showed sensorimotor polyneuropathy of the upper and lower extremity nerves. The only findings specifically for the hands showed normal motor strength of wrist flexion and extension, finger flexion and abduction, and thumb opposition. In an April 2010 Board hearing, the Veteran stated that he was unable to fasten buttons or remove the cap from medicine containers. He stated that he was not receiving medical treatment for the disability with the exception of hand massage and hot soaking several times per week. He stated that none of his medical care providers recommended surgery, and he did not discuss the use of wrist braces or other support devices. He also stated that he experienced hand tremors during the nerve conduction testing that involved the use of sharp needles. The Veteran contended that the VA examiner in December 2009 did not properly document all his hand symptoms including notations regarding tremors during the testing. The Board concludes that a rating in excess of 10 percent for right and left carpal tunnel syndrome is not warranted at any time during the period covered by this appeal. The Board concludes that the Veteran's carpal tunnel syndrome is overlaid by more extensive peripheral neuropathy associated with non- service-connected cervical spondylosis as diagnosed by several examiners in 2007. The Board further concludes that the level of partial paralysis of the bilateral wrists and fingers under Diagnostic Code 8515 is best characterized as mild and not moderate. The Board places some probative weight on the Veteran's reports of morning hand stiffness, tingling sensation, and loss of grip strength causing him to drop objects and be unable to fasten buttons or remove bottle caps. The Veteran is competent to report his observable symptoms and his reports are credible because they have been accepted by his examining physician as consistent with the clinical studies. The Board places less probative weight on the Veteran's reports of hand tremors. At his hearing, he reported the tremors were associated with clinical nerve testing. Notwithstanding the Veteran's criticism of a VA physician's reports in December 2009, none of the other examiners mentioned the presence of hand tremors. The Board places no probative weight on the instructional report by the private physician in October 2009. The document was written as an informational treatise on the general nature of carpal tunnel syndrome. The physician made no reference to an examination of the Veteran or a review of his records. His conclusions regarding the Veteran's capacity for employment were without any rationale or direct application to the Veteran's specific symptoms. A higher rating for moderate symptoms is not warranted. The Board places greater probative weight on the examination reports in June 2008, December 2009, and the January 2009 letter that show that the Veteran is able to close a fist and oppose the thumb with sufficient dexterity to handle a bundle of documents. Motor testing of the wrists and fingers was normal in December 2009. Although physicians noted that the Veteran should avoid the use of a keyboard and that there is moderate impairment of recreation and sports activities, the Veteran displays mild impairment of all other forms of daily activities including activities such as opening bottles, fastening buttons, and other functions requiring fine hand motor skills. The Veteran receives no regular medical care for his wrists and fingers and his clinicians have not found his disorder sufficiently severe or disabling to warrant surgery or the use of support devices. The Veteran is able to accomplish the activities of daily living such as shopping and performing household chores. The Board considered whether an alternative rating is warranted for degenerative joint disease of the right and left wrist. Some but not all X-rays obtained since discharge from service showed mild degenerative joint disease. However, as the Veteran is able to close fingers to the palm of both hands and oppose both thumbs with fingers, there is no evidence of limitation of motion of the fingers, and no clinical observations or reports from the Veteran of limitation of motion of the wrist. Therefore, a single rating of 10 percent for both hands under Diagnostic Code 5003 for two major joints with no limitation of motion or incapacitating episodes would be warranted but less advantageous to the Veteran. A separate rating for degenerative arthritis to be combined with ratings for partial nerve paralysis is not warranted as it would constitute impermissible pyramiding of multiple ratings for the same manifestations. See 38 C.F.R. § 4.14. The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1). The Veteran has not presented any evidence that his particular service-connected bilateral carpal tunnel syndrome results in a unique disability that is not addressed by the rating criteria. Specifically, there is no evidence of frequent hospitalization or marked interference with employment that would suggest that the Veteran is not adequately compensated by the regular schedular standards. Clinicians have advised the Veteran to avoid use of keyboard devices and other activities requiring fine hand motor skills. However, the Veteran does have sufficient dexterity to handle documents and perform most activities of daily living. Therefore, the Board concludes that the Veteran is not precluded from all forms of gainful employment. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial or staged rating in excess of 10 percent for carpal tunnel syndrome of the right hand and wrist is denied. An initial or staged rating in excess of 10 percent for carpal tunnel syndrome of the left hand and wrist is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs