Citation Nr: 1122949 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 09-46 609A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable disability rating for right hand carpal tunnel syndrome prior to December 10, 2009, and for a disability rating in excess of 10 percent from December 10, 2009. 2. Entitlement to a compensable disability rating for left hand carpal tunnel syndrome prior to December 10, 2009, and for a disability rating in excess of 10 percent from December 10, 2009. ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from September 1987 to September 2007. This matter arises from a March 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina, which granted, in pertinent part, service connection for right and left carpal tunnel syndrome (CTS) and assigned noncompensable disability evaluations. The Veteran expressed disagreement with assigned disability evaluations. In a July 2010 rating determination, the RO increased the Veteran's noncompensable disability evaluations for his right and left carpal tunnel syndrome from noncompensable to 10 percent disabling. Although the RO granted increased ratings, a 10 percent rating is less than the maximum available rating; thus, the issues of entitlement to increased ratings for right and left CTS remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. Prior to December 10, 2009, CTS of the right hand was manifested by numbness and tingling but with no objective findings of muscle weakness or paralysis. 3. From December 10, 2009, CTS of the right hand was manifested by muscle weakness, decreased sensation, and partial impairment equating to no more than mild incomplete paralysis. 4. Prior to December 10, 2009, CTS of the left hand was manifested by numbness and tingling but with no objective findings of muscle weakness or paralysis. 5. From December 10, 2009, CTS of the left hand was manifested by muscle weakness, decreased sensation, and partial impairment equating to no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to December 10, 2009, the criteria for a compensable disability rating, for the Veteran's service-connected left CTS were not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8515 (2010). 2. From December 10, 2009, the criteria for a disability rating in excess of 10 percent, for the Veteran's service-connected left CTS were not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8515 (2010). 3. Prior to December 10, 2009, the criteria for a compensable disability rating, for the Veteran's service-connected right CTS were not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8515 (2010). 4. From December 10, 2009, the criteria for a disability rating in excess of 10 percent, for the Veteran's service-connected right CTS were not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8515 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) , and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, in pertinent part, the Veteran filed his claim for service connection in May 2007. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in an undated pre-discharge notice. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, identified the Veteran's duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding VCAA. Subsequently, the claims were reviewed and a supplemental statement of the case (SSOC) was issued in July 2010. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in the undated notice. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records and post-service private treatment records pertaining to his disabilities have been obtained and associated with his claims file. The Veteran was provided fee-based examinations in June 2007 and March 2010 to determine the nature and etiology of his disabilities. Furthermore, he has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. Laws and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2010) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2010). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2010). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2010). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The United States Court of Appeals for Veterans Claims (the Court) held that in evaluating a service-connected disability, functional loss due to pain under 38 C.F.R. § 4.40 (1997) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1997) must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). In this case, the Veteran was assigned 10 percent disability ratings for right and left CTS under Diagnostic Code 8515. Under Diagnostic Code 8515, for the minor hand, mild incomplete paralysis of the median nerve warrants a 10 percent evaluation, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation, and severe incomplete paralysis of the median nerve warrants a 40 percent evaluation. Complete paralysis of the median nerve, with 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 place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, and the index and middle finger remain extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at the right angle to the palm; weakened flexion of the wrist; and pain with trophic disturbances warrants a 60 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The rating schedule provides the following guidance in evaluating the severity of disabilities of peripheral nerves: Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2010). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2010). Factual Background and Analysis The Veteran was granted service connection upon separation from service due to a nerve conduction study dated in 1995 which showed evidence of bilateral mild subclinical carpal tunnel syndrome, and a June 2007 fee-based examination which included a diagnosis of bilateral carpal tunnel syndrome. In the June 2007 fee-based examination, the Veteran reported he has had CTS for five months. Symptoms include tingling and numbness of all five fingers, which come and go three to five times during the day, lasting one to three minutes at a time. He also reported this occasionally radiated into the arms. During flare-ups, he has to stop work with his hands and fingers. He did not have any treatment for this disorder and he endorsed no functional impairment. Upon examination, motor and sensory nerves were normal. There was no peripheral nerve involvement on the examination. He had a negative Tinel's sign, negative Phalen's test, and negative Tinel's sign at the ulnar groove. The examiner diagnosed bilateral carpal tunnel syndrome, and noted that subjectively, he has numbness and tingling mainly involving hands occasionally radiating into the arms. Objectively, the examination was unremarkable. The X-ray report was unremarkable, and MRI of the cervical spine was normal. The examiner referred to the March 1995 nerve conduction study which showed evidence for mild subclinical bilateral carpal tunnel syndrome. The examiner opined that his symptoms are most consistent with carpal tunnel syndrome. In a December 2009 letter, Dr. T. P. B. stated that the Veteran was first seen in February 2009 for complaints of bilateral hand paresthesias. He reported he has paresthesias in both hands affecting all the digits, worse when he works overhead. Upon examination, it was noted that he has atrophy in his bilateral thenar muscles, a positive Phalen's test, a positive Tinel's sign, and decreased sensation to pin prick. There was muscle weakness in both thumbs when thumb opposition was tested. The physician stated that it was his opinion that the Veteran has permanent partial impairment in both hands. The physician further noted that although his symptoms are mostly sensory in nature, there is definite muscle weakness in both hands. In February 2010 private treatment record, the Veteran reported pain and weakness in the fourth and fifth digits bilaterally. He complained that his hands go to sleep at night, but also while he is using them during the day. He stated he uses his hands a lot during the day; he works as a parachute rigger and he also works on ejection seats and ordinance at the marine air station. He reported pains in his elbows and forearms. The pains are somewhat sporadic. An EMG study performed in January 2010 found prolonged medial sensory distal latencies at the wrists bilaterally, reduced palmar sensory amplitudes, and prolonged median motor distal latency at the wrist with a reduced left median motor CMAP amplitude. The right median motor study was normal. Ulnar studies showed slowing of conduction velocity across the elbows bilaterally. The diagnoses were CTS and bilateral tardy ulnar palsy. During a March 2010 fee-based examination, the Veteran complained of tingling, weakness, pain, and numbness of the fingers bilaterally. He reported that his symptoms occur constantly all day and night and disrupt his sleep. He also complained that he is limited in his ability to work for more than a few minutes at a time without taking breaks, as his hands become too painful and numb to continue. Neurological examination found motor function abnormal with findings of weakness of bilateral hands (4/5) in spreading fingers. Sensory function was abnormal with findings of decreased pinprick sensation in the ring and little fingers bilaterally. Tinel's sign is negative at the elbows and at the wrists. Phalens's sign is positive for ulnar nerve numbness only. Nerve conduction study findings were reviewed. The examiner referred to the January 2010 report which found bilateral entrapment/compression neuropathies of the median and ulnar nerves. The diagnosis was left and right carpal tunnel syndrome. It was noted that the Veteran's condition has worsened in severity. The effect of the disability on the Veteran's usual occupation is that he is unable to perform his usual job as a parachute rigger without taking frequent breaks because of the numbness and weakness in the hands. The effect of the condition on the Veteran's daily activities is that he is limited in his ability to perform any functions that require use of his hands for more than a few minutes at a time. The examiner further noted his sleep is disturbed by his disorder. Analysis Based on the evidence of record, the Board finds that compensable ratings are not warranted prior to December 10, 2009 for left and right CTS. There has been no objective manifestation of mild incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a. In fact, during the June 2007 VA examination, the physical examination was normal with normal motor and sensory nerves. The Board finds that ratings in excess of 10 percent are not warranted from December 10, 2009 for left and right CTS. The first objective evidence of muscle weakness related to CTS is noted in the December 2009 letter from Dr. T. P. B. There has been no objective manifestation of moderate incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a. The December 2009 letter indicated that the Veteran's disability was primarily sensory. Although, the March 2010 fee-based examiner noted that the Veteran's disorder had worsened, the RO had accurately accounted for this worsening by raising the Veteran's disability rating to 10 percent. Essentially, CTS of the left and right hands are manifested by no worse pathology than muscle weakness, decreased sensation, and partial impairment equating to no more than mild incomplete paralysis. Although limitation of function of the hands was expressed by the March 2010 fee-based examiner, such limitation is contemplated by the 10 percent evaluation assigned. The disabilities have never been described as "moderate" much less "severe," the levels of pathology required for an increased schedular rating. The Board has chosen to characterize the Veteran's disorder under Diagnostic Code 8515 as the VA examiners and the RO related the Veteran's symptoms specifically to the median nerve. The Board has also considered rating the Veteran's service-connected disabilities under a different Diagnostic Code, but finds none that may be assigned on the facts of record or which would avail the Veteran of a higher disability rating. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Throughout the appeal period there has been no objective medical evidence of: mild incomplete paralysis of the musculospiral nerve (diagnostic code 8514); mild incomplete paralysis of the musculocutaneous nerve (diagnostic code 8517); mild incomplete paralysis of the circumflex nerve (diagnostic code 8518); or mild incomplete paralysis of the long thoracic nerve (diagnostic code 8519). 38 C.F.R. § 4.124a. Although there were findings of ulnar nerve impairment in the February 2010 private examination, there is no indication that the impartial paralysis would rise to moderate disability as necessary to increase the Veteran's current disability rating beyond the assigned ratings. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorders that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. Although the Veteran has argued that his CTS disabilities interfere with his ability to perform his usual job as a parachute rigger without taking frequent breaks because of the numbness and weakness in the hands, such interference is contemplated in the disability ratings assigned. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. The Veteran's service-connected right and left CTS is adequately rated under the available schedular criteria. The objective findings of physical impairment are well documented. The Board finds the overall evidence of record shows some limitations as contemplated by the rating but is not indicative of a marked interference with employment as a result of these disabilities. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The preponderance of the evidence is against the Veteran's claim for an increased rating. ORDER Entitlement to a compensable disability rating for right hand carpal tunnel syndrome prior to December 10, 2009, and for a disability rating in excess of 10 percent from December 10, 2009 is denied. Entitlement to a compensable disability rating for left hand carpal tunnel syndrome prior to December 10, 2009, and for a disability rating in excess of 10 percent from December 10, 2009 is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs