Citation Nr: 1107101 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 06-23 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome. 2. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to August 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over this case was transferred to the RO in Milwaukee, Wisconsin. This case was previously before the Board in August 2009. A November 2010 rating decision granted service connection for lumbar strain and hypertension, and assigned ratings for those disabilities. The Veteran has not expressed disagreement with the November 2010 RO decision. A total rating based on individual unemployability due to service-connected disability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. At his November 2010 VA examination the Veteran stated that he had recently stopped working to attend college; he indicated that he did not leave his job due to any physical limitations. FINDING OF FACT Throughout the rating period on appeal, the Veteran's left and right carpal tunnel syndrome has been manifested by complaints of pain, problems with gripping, and numbness resulting in no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left carpal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2010). 2. The criteria for an initial rating in excess of 10 percent for right carpal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8515 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. 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); 38 C.F.R. § 3.159(b); 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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, the Department of Veterans Affairs (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 an effective date for the award of benefits will be assigned if service connection is awarded. As the August 2005 rating decision granted service connection for left and right carpal tunnel syndrome, those claims are now substantiated. As such, the filing of a notice of disagreement as to the disability rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the disability rating assigned triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The Board observes that as for rating the Veteran's carpal tunnel syndrome, the relevant criteria have been provided to the Veteran, including in the March 2006 statement of the case. In March 2006 the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA records. The Veteran has undergone VA examinations that addressed the medical matters presented on the merits by this appeal. 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 VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations described the Veteran's disabilities in sufficient detail so that the Board is able to fully evaluate the claimed disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board finds that there has been substantial compliance with its August 2009 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Because the service-connected carpal tunnel syndrome appeals are from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must also be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating periods on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the 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. Following receipt of the Veteran's March 2005 claim, and based in part on the results of a May 2005 VA fee-basis examination, the August 2005 rating decision granted the Veteran service connection for left and right carpal tunnel syndrome, and assigned 10 percent initial ratings, effective August 9, 2005, the day following the Veteran's separation from service. The Veteran is right-hand dominant. Under Diagnostic Code 8515 for peripheral nerve impairment involving the median nerve, mild incomplete paralysis warrants a 10 percent rating for the major or minor upper extremity. The next higher rating, 30 percent, contemplates moderate incomplete paralysis of the major upper extremity. Severe incomplete paralysis of the major upper extremity warrants a 50 percent rating. Complete paralysis of the median nerve warrants a 70 percent rating for the major upper extremity. The functional loss due to complete paralysis includes: the hand inclined to the ulnar side, index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of wrist weakened, or pain with trophic disturbances. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. 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. At the May 2005 VA fee-basis examination, the Veteran complained of constant tingling and numbness in his fingers, without weakness. Examination of the upper extremities was within normal limits, and neurological examination of the upper extremities revealed that motor function and sensory function were within normal limits. A January 2006 VA record reveals that the Veteran complained of painful hands that would become weak and cause him to drop objects upon repetitive use. The Veteran denied any numbness or weakness in the distribution of the median nerve. April 2006 VA EMG (electromyogram) and NCV (Nerve conduction study) revealed no evidence of carpal tunnel syndrome. At a January 2010 VA examination the Veteran reported that he had pain and cramping in his hands but no numbness or tingling. He stated that prolonged gripping caused pain. He also indicated that he had coldness in his right hand that he attributed to poor circulation. The examiner noted that the Veteran had shaking of the left hand that was not related to carpal tunnel syndrome, and noted that a rheumatology record had observed that the Veteran had a diagnosis of soft tissue rheumatism. Sensory examination to pinprick was essentially normal, and there was no objective evidence of sensory deficits, tenderness to palpation, or muscle spasm. Upper extremity muscle testing was normal, and deep tendon reflexes were equal in the upper extremities. The examiner noted that there were no objective neurological deficits in the hands. The diagnosis was no evidence of bilateral carpal tunnel syndrome-essentially resolved. Based on the findings, including normal strength testing, normal sensory function, and normal EMG/NCV testing, no more than mild incomplete paralysis of the median nerve under Diagnostic Code 8515 is shown for the upper extremities. While acknowledging that the Veteran has complained of painful hands and problems with gripping objects, the Board notes that the January 2010 VA examiner specifically stated that the Veteran had no objective neurological deficits in the hands. As for other potentially applicable diagnostic codes, the Board notes that limitation of motion of the wrist is addressed under Diagnostic Code 5215, and a 10 percent rating represents the maximum available benefit under that Code. The May 2005 VA fee- basis examination noted that the Veteran could dorsiflex his wrists to 70 degrees, and palmar flex to 80 degrees. 38 C.F.R. § 4.71, Plate I (2010), reflects that normal dorsiflexion of the wrist is 0 to 70 degrees, and the normal palmar flexion is to 80 degrees. As the Veteran has normal motion of the wrists, a separate or increased rating under Diagnostic Code 5215 is not for application. In sum, the Board finds that the preponderance of the evidence is against initial ratings in excess of 10 percent for the Veteran's left and right carpal tunnel syndrome disabilities. The Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his left and right upper extremity disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible and consistent in his reports of the hand pain and gripping difficulties that he experiences. However, as with the medical evidence of record, the accounts of the Veteran's symptomatology are consistent with the ratings currently assigned. The Board has been mindful of the "benefit-of-the- doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran's service-connected left and right upper extremity disabilities are not so unusual or exceptional in nature as to render the schedular ratings inadequate. The Veteran's disabilities have been evaluated under the applicable diagnostic codes that have specifically contemplated the level of occupational impairment caused by his service-connected disabilities. The evidence does not reflect that the Veteran's carpal tunnel syndrome, alone, has caused marked interference with his employment (or with the Veteran's college coursework) or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Therefore, referral for assignment of an extra- schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating in excess of 10 percent for left carpal tunnel syndrome is denied. An initial rating in excess of 10 percent for right carpal tunnel syndrome is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs