Citation Nr: 1310283 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-03 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased disability evaluation (rating) in excess of 30 percent for right carpal tunnel syndrome. 2. Entitlement to an increased disability evaluation (rating) in excess of 30 percent for left carpal tunnel syndrome. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from August 1970 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's right (major) carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve. 2. Throughout the rating period on appeal, the Veteran's left carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for right carpal tunnel syndrome have not been met or more nearly approximated for any period. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8515 (2012). 2. The criteria for a rating higher than 20 percent for left carpal tunnel syndrome have not been met or more nearly approximated for any period. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in August 2007 and January 2009, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). This appeal grew out of the claim for increased ratings for carpal tunnel syndrome; therefore, no further notice is needed under VCAA regarding the rating issue. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his claims for increased ratings for carpal tunnel syndrome in 2007 and 2010. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's disabilities, including his history and clinical evaluation. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2010 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disabilities have worsened since the February 2010 VA examination; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal has worsened since the last VA examination and VA treatment records in 2010. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Rating of Carpal Tunnel Syndrome Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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). The Veteran's carpal tunnel syndrome of the right and left wrists is rated as 30 percent disabling for the right (major) wrist and 20 percent disabling for the left (minor) wrist, according to the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8515. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 8515, for the major wrist, a 30 percent rating requires moderate incomplete paralysis. A 50 percent rating requires severe incomplete paralysis. A 70 percent disability rating requires complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under Diagnostic Code 8515, for the minor wrist, a 20 percent rating requires moderate incomplete paralysis. A 40 percent rating requires severe incomplete paralysis. A 60 percent disability rating requires complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. Analysis of Rating for Carpal Tunnel Syndrome The Veteran contends that higher disability ratings are warranted for his right and left carpal tunnel syndrome. He reported complaints of decreased functioning of the hands, with difficulty in personal hygiene, eating, and dressing. He complained of increased numbness, difficulty grasping, and reduced strength. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal the Veteran's service-connected right and left carpal tunnel syndrome more nearly approximates the criteria for 30 percent for the right and 20 percent for the left under Diagnostic Code 8515. The evidence shows that, throughout the rating period on appeal, the Veteran does not have severe incomplete paralysis of the median nerve. Additionally, the schedular diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's right and left carpal tunnel syndrome. Throughout the rating period on appeal, the Veteran's right and left carpal tunnel syndrome have been characterized by no more moderate incomplete paralysis of the median nerve. According to the August 2007 VA joints examination report, the Veteran complained of difficulty with fine motor skills and dexterity of his hands, right worse than left, and pain, as well as increased numbness and decreased sensation upon flare-ups. At the joints examination, he had right wrist ulnar deviation to 45 degrees, radial deviation to 20 degrees, dorsiflexion to 65 degrees, and palmar flexion to 70 degrees; left wrist ulnar deviation was to 45 degrees, radial deviation was to 20 degrees, dorsiflexion was to 65 degrees, and palmar flexion was to 70 degrees. At the peripheral nerves examination in August 2007, the Veteran's muscle strength of the right upper extremity was 4 out of 5 due to slight weakness; on the left, it was 5 out of 5. The Veteran had absent sensory function to vibration and light touch, and decreased sensory function as to position sense on the right, and decreased sensory function to vibration, light touch, and position sense on the left. Reflexes were 2+ for the biceps bilaterally; reflexes for the triceps brachioradialis, and finger jerk were 1+ and 2+. There was moderate muscle atrophy on the right and slight atrophy on the left due to nerve damage. The Veteran's carpal tunnel syndrome was described as moderate bilaterally, with mild affects on activities of daily living. Occupational impairment due to decreased manual dexterity and pain was noted. A January 2010 report from Concord Orthopedics showed a diagnosis of severe carpal and cubital tunnel syndrome bilaterally; however, examination showed 2+ reflexes and no epicondylar tenderness, although there was bilateral thenar atrophy. At the February 2010 VA examination, the Veteran complained of paresthesias in the hands, as well as weakness and numbness. He reported that he fell from a roof after service in December 2008, when he was unable to feel or grip a handle, wherein he injured his back and neck. Motor examination showed weakness of the median and ulnar nerves, right worse than left, with atrophy of the upper extremity opponens, lumbricals, and interosseous muscles. Sensory function testing was relatively normal, with slight loss of pin-prick sensation bilaterally; he had otherwise normal upper extremity sensation to vibration, pain, light touch, and position sense. Reflexes were 2+ bilaterally for all upper extremity reflexes bilaterally. An August 2003 EMG report was noted; the EMG showed severe bilateral carpal tunnel syndrome and significant ulnar neuropathies at the elbows. The VA examiner's diagnosis in February 2010 was bilateral carpal tunnel syndrome, with nerve dysfunction, decreased mobility, decreased manual dexterity, and decreased strength of the upper extremity; the effects on activities of daily living was described as mild to moderate, except for sports, recreation, and dressing. Furthermore, the Board observes that the Veteran's available VA treatment records for the period on appeal do not show any treatment for his right and left carpal tunnel syndrome, or more than moderate effect on his activities of daily living. For these reasons, the Board finds that a preponderance of the evidence is against the claims for increased disability evaluations in excess of 30 percent and 20 percent, respectively, for the right and left carpal tunnel syndrome, for any period, and the claims must be denied. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for right and left carpal tunnel syndrome. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's right and left carpal tunnel syndrome is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 8515, specifically provides for disability ratings based on a combination of history and clinical findings such as atrophy, loss of finger motion and ability to oppose, and trophic disturbances. The schedular rating criteria specifically contemplate the extent of paralysis, weakness, pain, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's right and left carpal tunnel syndrome has manifested some occupational impairment due to reduced fine motor skills and grip strength, but no more than moderate impairment of his activities of daily living. These symptoms are part of the schedular rating criteria, or otherwise "like or similar to" the rating criteria. See 38 C.F.R. § 4.124a. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with right and left carpal tunnel syndrome, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased disability evaluation (rating) in excess of 30 percent for right carpal tunnel syndrome is denied. An increased disability evaluation (rating) in excess of 20 percent for left carpal tunnel syndrome is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs