Citation Nr: 1002481 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 05-06 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome and peripheral neuropathy. 2. Entitlement to an increased evaluation for neuropathy of the right radial nerve, currently evaluated as 20 percent disabling. 3. Entitlement to an increased evaluation for neuropathy of the left radial nerve, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active service from October 1986 until May 1988. These matters come before the Board of Veterans' Appeals (BVA or Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. These matters were previously before the Board in July 2007 and were remanded for further development. They have now returned to the Board for further appellate consideration. The issue of entitlement to service connection for bilateral carpal tunnel syndrome and peripheral neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the entirely of the rating period on appeal, the Veteran's service-connected neuropathy of the right radial nerve has been manifested by complaints of weakness in his hand and numbness in his fingers; objectively, the clinical evidence reveals normal sensory contention status bilateral radial nerves, normal range of motion with no pain, normal repetitive movements with no pain, and no wrist drop, indicating no more than mild incomplete paralysis. 2. During the entirely of the rating period on appeal, the Veteran's service-connected neuropathy of the left radial nerve has been manifested by complaints of weakness in his hand and numbness in his fingers, objectively, the clinical evidence reveals normal sensory contention status bilateral radial nerves, normal range of motion with no pain, normal repetitive movements with no pain, and no wrist drop, indicating no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for neuropathy of the right radial nerve have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.6, 4.7, 4.12a, Diagnostic Codes 8514, 4.25, 4.26 (2009). 2. The criteria for a disability rating greater than 20 percent for neuropathy of the left radial nerve have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321(b), 4.6, 4.7, 4.12a, Diagnostic Codes 8514, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Duty to Notify 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) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection " claim, to include an increased rating claim. In VA correspondence to the Veteran dated in August 2003 and March 2006, the Veteran was informed of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board observes the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, this case was recently overturned in part by the Federal Circuit. See Vazquez- Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). Hence, it need not be further discussed in this decision. Although, the March 2006 correspondence did not specifically reflect that it pertained to the Veteran's claim for an increased rating for right neuropathy radial nerve disability, the Board finds that this deficiency is not prejudicial to the Veteran. A June 2004 Statement of the Case (SOC) set forth the relevant diagnostic codes for the disabilities at issue and provided all possible ratings under the applicable diagnostic code. The Veteran was provided with complete notice in VA correspondence in August 2007. The Veteran was informed of the criteria necessary for an effective date and disability rating in VA correspondence dated in March 2006 and August 2007. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was not prejudicial to the Veteran. Although complete notice was provided to the appellant after the initial adjudication, the Veteran was provided with 60 days to submit any additional evidence in support of his claims. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, and VA examination records. Additionally, the claims file contains the statements of the Veteran in support of his claims. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The June 2009 VA examination report reflects that the Veteran reported he had seen a civilian neurologist in 2005 who allegedly noted deterioration of nerve of unknown etiology. These records are not associated with the claims file. As the Veteran's evaluation is based on the status of his radial nerves, and the June 2009 examination is more than adequate as to the Veteran's disabilities, the Board finds that a remand to obtain any 2005 records which reflect an unknown etiology is not warranted. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). A VA examination with respect to issues on appeal was obtained in June 2009. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2009 VA opinion is more than adequate, as it is predicated on a review of the Veteran's claims file, to include medical records, and a physical examination of the Veteran, to include diagnostic testing. The report of the examination contains findings necessary to evaluate the disabilities under the applicable diagnostic code rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Rating Disabilities Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 portray 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2009), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran is service-connected for right radial neuropathy, evaluated as 20 percent disabling, effective from May 1988 and left radial neuropathy, evaluated as 20 percent disabling, effective from May 1988. In a statement received in July 2003, the Veteran asserted that an increased evaluation was warranted for his service-connected bilateral radial neuropathy. As the Veteran's claim was received by VA in July 2003, the rating period on appeal is from July 2002, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2) (2009). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2009) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the history of the disability is for consideration in rating a disability. The medical evidence of record reflects that the Veteran is right handed; therefore his right limb is considered the major limb for rating purposes, and his left limb is considered the minor limb for rating purposes. The disabilities at issue are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 8514. Under Diagnostic Code 8514, incomplete paralysis of the radial nerve is evaluated as 20 percent disabling for the major or minor limb if found to be mild, 30 percent for the major limb, and 20 percent for the minor limb, if found to be moderate, and 50 percent for the major limb, and 40 percent for the minor limb, if the condition is found to be severe. Complete paralysis with be evaluated as 70 percent for the major limb, and 60 percent for the minor limb, for drop of the hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger, or where the patient cannot extend the hand at the wrist, extend the proximal phalanges of the fingers, extend the thumb, or make lateral movement of the wrist, or where there is supination of the hand, weakened extension and flexion of the elbow, or where loss of synergetic motion of extensors seriously impairs the hand grip, or where total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a. A September 2003 VA examination record reflects that the Veteran had a twenty percent weakness in extension and flexion of the wrists and thumbs. The Veteran was diagnosed with mild bilateral radial nerve palsy, and unrelated carpal tunnel syndrome and unrelated peripheral neuropathy. An electromyography (EMG) showed no measurable evidence of radial nerve injury. The examiner noted that the Veteran had median, ulnar, and peroneal nerve abnormalities due to entrapment and unrelated to radial nerve palsy. A June 2009 VA examination record reflects that the Veteran is not taking any medications, nor wearing any splints or brace. It further reflects that the Veteran reported that he is able to do his daily routine simple activities for himself, but on a few days a week, on average, he requires assistance with buttoning and shoe laces. The Veteran reported that he was working full time, with no prolonged immobilization or hospitalization. He reported that, when having weakness of his hands, he dropped things on occasion. Upon clinical examination, the Veteran was found to have no obvious atrophy or wasting of the muscles. There were no fasciculations or tremors. The power in the muscles of the both hands was slightly diminished 4 by 5. The power in the muscles of both forearms was normal. There was no wrist drop. The movements of both wrist joints was within normal range and not painful. Repetitive movements were normal. The sensations were diminished over the 4th and 5th fingers as well as ulnar aspect of both hands as well as distal part of both forearms near the wrist. The sensations were intact in other parts of the hand, especially over the first, second, third parts of the hand and radial aspects of the hand, as well as other parts of the forearm. There was no obvious deformity or tenderness of the elbow joints. The movement of the elbow joints was within normal range, and not painful. Repetitive movements were normal and not painful. There was no obvious swelling, tenderness, redness, or crepitus of the small joints of both hands, and the movement of the joints were within normal range and not painful. It was noted that the Veteran was able to write and hold things "fairly well." Tapping of the lateral epicondyles of both elbow areas did not produce any more symptoms especially weakness and parenthesis in the forearms and hands. There was no tender points especially in the proximal part of the forearms. More pressure on the proximal part of the forearm did not re-produce more symptoms in the hands, especially parenthesis. A June 2009 EMG of both hands reflects normal sensory condition status bilateral radial nerves. The final impression was consistent with bilateral ulnar nerve entrapment at the elbow without evidence of an axonal degeneration of motor fibers. The June 2009 VA examiner opined that the Veteran's current condition and symptom of numbness and weakness in his fingers and hands and with the impairment of his grasp and fine motor activities are not likely related to, or aggravated by, service-connected neuropathy of the right and left radial nerves. He further opined that the median, ulnar, and peroneal nerve abnormalities are due to entrapment unrelated to the radial nerve palsy during active service. For purposes of DC 8514, incomplete paralysis indicates a degree of lost or impaired functional substantially less than the type picture for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The September 2003 VA examiner diagnosed the Veteran with "mild" bilateral radial nerve palsy, with no measurable evidence of radial nerve injury. The June 2009 VA examination record reflects that the Veteran's range of motion is within the normal range bilaterally. There was no wrist drop. Based on the forgoing, the Board finds that the Veteran's disabilities reflect, at most, mild bilateral neuropathy of the radial nerve. Therefore, he is entitled to no more than a 20 percent evaluation for his right radial neuropathy and a 20 percent evaluation for his left radial neuropathy. The ratings under DC 8514 are for unilateral involvement. When bilateral, the ratings are combined with application of the bilateral factor. The bilateral factor is found by taking 10 percent of the combined ratings. As the Veteran's two 20 percent evaluations are assigned for disabilities affecting opposite extremities (right and left radial nerves), the Board must consider application of the bilateral factor. 38 C.F.R. § 4.26 (2009). The Combined Ratings Table , 38 C.F.R. § 4.25, indicates that 20 percent combined with 20 percent is 36. The combined rating (36) is added to the bilateral factor of 3.6 (10 percent of 36) for a total of 39.6, which rounds up to 40 percent. The Board finds that the medical evidence of record demonstrates that the Veteran's disability picture more nearly approximates the criteria required for the currently assigned 20 percent rating for neuropathy of the right radial nerve, and 20 percent rating for neuropathy of the left radial nerve, throughout the rating period on appeal, and that staged ratings are not warranted. The Board has considered whether the Veteran's claim for an increased rating for his bilateral neuropathy of the radial nerve should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The record does not show that the Veteran has been hospitalized for problems with his radial nerves, or that there has been marked interference with employment. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(2009). To the contrary, the record reflects that the Veteran has had consistent full time employment. In light of the foregoing, it is the Board's conclusion that the preponderance of the evidence is against assignment of a higher schedular evaluation, or "staged rating," for the service-connected neuropathy of the right radial nerve, and service-connected neuropathy of the left radial nerve, at any time during the rating period on appeal. ORDER 1. Entitlement to an increased evaluation for neuropathy of the right radial nerve, currently evaluated as 20 percent disabling, is denied. 2. Entitlement to an increased evaluation for neuropathy of the left radial nerve, currently evaluated as 20 percent disabling, is denied. REMAND The Veteran avers that he has bilateral carpal tunnel syndrome and peripheral neuropathy due to active service, to include as secondary to, or aggravated by, the service- connected right and left radial nerves. In a July 2007 remand, the Board indicated that further development was required under VA's duty to assist. Specifically, the Board indicated that VA must obtain a VA medical opinion as to whether the Veteran's current bilateral carpal tunnel syndrome and peripheral neuropathy is etiologically related to service, to include neurologic examination findings with regard to the median nerve in September 1987. In this regard, a September 1987 service treatment record (STR) reflects Tinel signs in the right median nerve distribution near the axilla, and high median nerve Tinel sign at the medial radius on the left. The June 2009 VA examination report reflects an opinion that the Veteran's current bilateral nerve entrapment at the elbow is not likely related to, or aggravated by the Veteran's service connected disabilities; however, it does not address whether it is more likely than not related to active service, to include the September 1987 findings. The Board is obligated by law to ensure that the AOJ complies with its directives. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As noted above, the claims folder does not reflect that the AOJ substantially complied with the Board's directives set forth in July 2007. In addition, the June 2009 VA examination report reflects that the Veteran had been evaluated by a civilian neurologist in 2005. No records from such an evaluation are associated with the claims file. The Board finds that such records may be useful in adjudicating the claim, and VA should attempt to obtain them. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for all medical treatment facilities in which he was treated for carpal tunnel syndrome, his wrists, and his hands, to include a civilian neurologist in 2005. After obtaining a completed VA Form 21-4142, the AOJ should attempt to obtain all pertinent medical records, to include VA records, not already associated with the claims file. Any documents received by VA should be associated with the claims folder. 2. Thereafter, make arrangements with the same clinician who conducted the June 2009 VA examination, if possible, to provide a supplemental medical opinion in this case. The clinician should review the claims file, to include all additional evidence received pursuant to the above requested actions, and should note such in the opinion. If the same clinician is not available, make arrangements with the appropriate VA medical facility for a clinician of relevant expertise to provide a supplemental medical opinion in this case. The clinician should review the claims file, to include this remand, and should note such in the opinion. The clinician should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's has a current ulnar nerve entrapment, carpal tunnel syndrome, or other upper extremity disability of the median nerve which is causally related to the Veteran's active service. Specifically, the clinician should discuss the likelihood, if any, of the Veteran's current disability as being causally related to the Veteran's active service, to include the September 1987 STR regarding Tinel signs. If the reviewing clinician deems additional examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled for the Veteran. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The VA clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. 3. Thereafter, readjudicate the issue of entitlement to service connection for bilateral carpal tunnel syndrome and peripheral neuropathy. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs