Citation Nr: 1316540 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 07-29 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. What evaluation is warranted for carpal tunnel syndrome of the left wrist for the period from July 26, 2004 to May 19, 2008? 2. What evaluation is warranted for carpal tunnel syndrome of the left wrist for the period from May 20, 2008 to December 14, 2011? 3. What evaluation is warranted for carpal tunnel syndrome of the left wrist for the period beginning April 1, 2012? 4. Entitlement to special monthly compensation based on a loss of use of both hands. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In February 2013, the Veteran and his spouse testified before the undersigned Veterans Law Judge; a transcript of that proceeding is of record. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim which has been reviewed. FINDINGS OF FACT 1. For the period from July 26, 2004 to December 14, 2011, the Veteran's carpal tunnel syndrome of the left wrist was productive of severe incomplete paralysis of the median nerve; complete paralysis of the median nerve was not shown. 2. For the period beginning April 1, 2012, the Veteran's carpal tunnel syndrome of the left wrist has been characterized by residuals of a left proximal row carpectomy and neurectomy which have resulted in extremely unfavorable arthrodesis (ankylosis) of the left wrist. 3. Since April 1, 2012, carpal tunnel syndrome of the left wrist has been productive of a loss of use of the left hand; loss of use of the right hand has been established since April 2, 2004. CONCLUSIONS OF LAW 1. From July 26, 2004 to May 19, 2008, the criteria for a 40 percent evaluation, and no more, for carpal tunnel syndrome of the left wrist were met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8515 (2012). 2. From May 20, 2008 to December 14, 2011, the criteria for an evaluation greater than 40 percent for carpal tunnel syndrome of the left wrist were not met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8515. 3. Beginning April 1, 2012, the criteria for a 60 percent evaluation, and no more, for carpal tunnel syndrome of the left wrist were met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5125 and 5214 (2012). 4. Beginning April 1, 2012, the criteria for special monthly compensation based on loss of use of both hands were met. 38 U.S.C.A. §§ 1114(m) (West 2012); 38 C.F.R. §§ 3.350, 4.71a, Diagnostic Code 5125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The issue on appeal arises from the Veteran's disagreement with the initial evaluation assigned following an award of service connection for carpal tunnel syndrome of the left wrist. As service connection, an initial rating, and an effective date have been assigned, the VCAA notice requirements codified at 38 U.S.C.A. § 5103(a) have been met. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim, including outstanding VA and non-VA treatment records. There is no evidence that additional records have yet to be requested or that additional examinations are in order. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In this regard, he testified at hearing before the Board in February 2013 at which time he was notified of the issues on appeal, and the need to submit evidence that may have been previously overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, he submitted additional evidence during the hearing which was accompanied by a waiver of RO review. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In a November 2004 rating decision, the Veteran was granted entitlement to service connection for carpal tunnel syndrome of the left wrist and assigned an initial 20 percent evaluation, effective July 26, 2004. The Veteran disagreed with the evaluation assigned. In a July 2010 rating decision, VA granted a 40 percent evaluation for carpal tunnel syndrome of the left wrist, effective from May 19, 2008, the date of a VA examination. The Veteran underwent left wrist surgery on December 15, 2011. He thereafter filed for, and was granted, entitlement to a temporary total evaluation based on surgical treatment and convalescence for the period from December 15, 2011 to March 31, 2012. See 38 C.F.R. § 4.30 (2012). A 40 percent evaluation was assigned effective from April 1, 2012. At the outset, the Board observes that, with the exception of the temporary total evaluation assigned from December 15, 2011 to March 31, 2012, none of the increases granted by the RO awarded the maximum benefit available for the Veteran's service-connected disability. Thus, except for the period from December 15, 2011 to March 31, 2012, this appeal continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, during the pendency of this appeal the Veteran raised, and the RO adjudicated, the issue of whether his left wrist disability constituted a loss of use of the left hand such that he is entitled to special monthly compensation under 38 U.S.C.A. § 1114(m) for loss of use of both hands. See also 38 C.F.R. § 3.350(c)(1)(i). The Veteran is already in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) for loss of use of his right hand; thus, the only question is whether loss of use of the left hand is also shown. For reasons discussed below, the Board finds this issue to be part and parcel of the Veteran's initial rating claim on appeal. Thus, the Board has addressed it as part of this appeal. The Veteran's carpal tunnel syndrome has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515, which pertains to impairment of the median nerve group. The criteria for evaluating the severity or impairment of the median nerve group of the peripheral nerves are set forth under 38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8615, and 8715. The applicable ratings differ depending on whether the Veteran's major (dominant) or minor (non-dominant) hand is being evaluated. Here, the evidence reflects that the Veteran's left hand is traditionally his non-dominant hand. Under Diagnostic Code 8515, a 20 percent rating is assigned for moderate, incomplete paralysis; and a 40 percent rating is assigned for severe, incomplete paralysis. Complete paralysis of the median nerve warrants a 60 percent rating. Complete paralysis is manifested by 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. 38 C.F.R. § 4.124a. The provisions of 38 C.F.R. § 4.124a, Diagnostic Codes 8615 and 8715, respectively, address the criteria for evaluating neuritis and neuralgia of the median nerve group. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. The term 'incomplete paralysis' indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss 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. The words 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are 'equitable and just.' See 38 C.F.R. § 4.6. The use of descriptive terminology such as 'mild' by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). Initial Rating for the Period from July 26, 2004 to December 14, 2011 The initial 20 percent evaluation assigned from July 26, 2004 to May 19, 2008 for the Veteran's service-connected left (minor) carpal tunnel syndrome was based on a September 2004 VA examination report as well as contemporaneous VA and non-VA treatment records. Relevant to this appeal, a June 2004 private orthopedic note reflects that the Veteran complained of symptoms consistent with ulnar neuropathy, including numbness from his elbow to the fourth and fifth digits. Objective examination revealed no intrinsic neuropathy; Tinel's sign at the elbow was positive. An electromyographic study was recommended, and the June 2004 study report indicates findings consistent with compressive neuropathy of the median nerve (also diagnosed as carpal tunnel syndrome). The electromyographic study report notes the Veteran complained of numbness and paresthesias over his left arm and hand. Objectively, there was no evidence of muscular weakness or atrophy; median nerve hypoesthesia over the distal index finger was observed. The September 2004 VA examination report also reflects the Veteran's reports of numbness and tingling in his left hand and fingers. He also reported a loss of range of left wrist motion to the point where he reported being unable to hold anything in his hand. Treatment of his wrist included injections, wraps, and braces. On objective examination of the left wrist, dorsiflexion was limited to 30 degrees with severe pain; palmar flexion was absent (at 0 degrees). Radial and ulnar deviation were both limited to 10 degrees with pain. No additional functional limitation was indicated due to fatigue, weakness, lack of endurance, or incoordination. Neurological examination revealed atrophied muscles in the hand and forearm; sensory testing was normal. The impression was carpal tunnel syndrome of the left wrist. Thereafter, a March 2007 VA treatment report indicates that the Veteran sought evaluation by VA for complaints of curled fingers for the past year. Examination showed a painful range of left wrist motion. The assessment was left wrist pain with contracture and carpal tunnel syndrome. The Veteran underwent additional electromyographic study in January 2008. The study report reflects a history of years of ulnar and median distribution of hand pain and numbness. The appellant also reported noticing his fourth and fifth fingers tending to close and pain when attempting to open them. He also noticed increasing weakness in his hand intrinsics and grip. Objective examination showed motor testing of 5 out of 5 in both flexion and extension of the wrist and elbow. Grasp and dorsal interossei, however, were diminished at 3 out of 5 and 2 out of 5, respectively. No muscle atrophy was observed, but sharp sensory examination was diminished. There was electromyography evidence of left median sensorimotor neuropathy at the left wrist (carpal tunnel syndrome) as well as left ulnar sensorimotor neuropathy at the left elbow (cubital tunnel syndrome). Nighttime splints were recommended. The Veteran underwent VA orthopedic and neurologic examinations on May 20, 2008. Based on the findings of these examinations, the RO granted a 40 percent evaluation for severe incomplete paralysis of the median nerve. During these examinations, the Veteran reported symptoms of numbness and tingling in his left wrist along with left elbow pain and paresthesias down the medial arm. He also complained of difficulty with constant left wrist and hand pain, as well as an inability to completely extend his fingers and left wrist. He reported no flare ups associated with his left wrist condition, but did state that he had difficulty with a number of activities of daily living, especially those which required fine motor and dexterity skills. Use of a splint was noted, but the Veteran indicated no help from this treatment. On examination, the Veteran showed difficulty extending all the fingers in his left hand, and there was pain with passive flexion and extension of the fingers. His grip was noted to be weak, and there was decreased sensation in the fourth and fifth fingers. Tinel's sign was positive for both the wrist and elbow. Range of motion testing revealed an inability to move the left wrist beyond 8 degrees in any plane on either passive or active testing. The orthopedic examiner noted that the Veteran's fingers appeared most comfortable in the flexed position. The diagnosis was 'severe' carpal tunnel syndrome of the left wrist. Pertinent to the current appeal, the Board notes much similarity between the signs and symptoms described in the May 2008 VA examination reports and those discussed in the September 2004 VA examination report and earlier contemporaneous record. In this regard, subjectively, the Veteran consistently complained of pain in his left wrist and hand, along with numbness and tingling and paresthesias of the forearm, hand, and fingers. Objectively, he demonstrated decreased grip strength without evidence of atrophy, left hand finger contractures, and decreased sensation in the fourth and fifth fingers. Regarding range of motion of the wrist, the September 2004 VA examination shows a 50 percent loss of normal dorsiflexion and radial deviation, a 100 percent loss of normal palmar flexion, and a 25 percent loss of normal ulnar deviation. See 38 C.F.R. § 4.71a, Plate I (2012). The May 2008 VA examination demonstrates relatively similar losses of radial deviation, palmar flexion, and ulnar deviation; there is an additional 10 percent loss of normal dorsiflexion. Resolving reasonable doubt in favor of the Veteran, the Board finds the foregoing evidence supports an initial 40 percent rating for the period from July 26, 2004 to December 14, 2011. See 38 C.F.R. §§ 4.3, 4.7. As discussed immediately above, the competent evidence of record for this period is relatively consistent as to the Veteran's signs and symptoms associated with his left wrist carpal tunnel syndrome as well as the treatment applied to this disability. Given that such symptoms were described as 'severe' by the May 2008 VA neurological examiner, it is reasonable to conclude that the Veteran's disability has been 'severe' since service connection was awarded effective July 26, 2004. As for whether an evaluation greater than 40 percent is warranted for the period from July 26, 2004 to December 14, 2011, none of the VA examination reports or treatment records pertaining to this period of the appeal show that the Veteran's left carpal tunnel syndrome was productive of complete median nerve paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. None of the evidence of record describes the Veteran's left hand as being inclined to the ulnar side; there is also no indication that the index and middle fingers are more extended than normally. As previously discussed, muscular atrophy was not demonstrated at any time during the this appellate term, and the Veteran's thumb was not described as resting in the palm of the hand. The left hand fingers, while affected, were not shown to be immobile, and there was no evidence that the appellant could not make a fist. Finally, while there was weakened wrist flexion as well as pain, there was no evidence of trophic disturbances which would warrant higher evaluation. In sum, the competent evidence of record indicates symptomatology productive of no more than severe incomplete paralysis of the median nerve for the period from July 26, 2004 to December 14, 2011. Thus, the Veteran is entitled to a 40 percent evaluation for this period, and no greater. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to an evaluation in excess of 40 percent, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initial Rating for the Period Beginning on April 1, 2012 As noted, the Veteran underwent left wrist surgery on December 15, 2011. A temporary total evaluation was assigned effective this date until March 31, 2012. A 40 percent evaluation was assigned beginning April 1, 2012 under Diagnostic Code 8515. Following his surgery, in April 2012, the Veteran underwent VA examination to evaluate the severity of his post-surgical residuals. The resultant examination report reflects that the appellant continued to complain of severe, constant left wrist and hand pain. Pertinent to this appeal, the wrist examination report indicates that the Veteran's post-surgical residuals include left wrist arthrodesis, or artificial ankylosis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, p. 156 (30th ed. 2003). As a result of the arthrodesis, the Veteran demonstrated no wrist muscle strength. Sensory examination was normal, except for continued decreased sensation in the left median nerve distribution. In describing the Veteran's ankylosis, the examiner indicated that it was 'extremely unfavorable.' The question of which diagnostic code to apply in a particular claim is a question of fact, and that the Board must explain its reasons for changing any diagnostic code assigned by the agency of original jurisdiction. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Here, the April 2012 VA examination report shows continued symptomatology consistent with left carpal tunnel syndrome. There is, however, evidence of orthopedic manifestations (i.e., ankylosis) which may also describe the overall impairment of the Veteran's left wrist disability. In this regard, pursuant to Diagnostic Code 5214, extremely unfavorable ankylosis of the wrist will be rated as loss of use of hands under Diagnostic Code 5125. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2012). Diagnostic Code 5125 provides that loss of use of the minor hand warrants a 60 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5125 (2012). Given the foregoing evidence, the Board concludes that, effective April 1, 2012, the Veteran's post-surgical disability meets the criteria for a 60 percent evaluation under Diagnostic Code 5125. This diagnostic code further provides that special monthly compensation be assigned for loss of use of the involved hand. See id. at Note (1); see also 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). In this case, the Veteran is already in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) for loss of use of the right hand. Thus, the Board's decision to award a 60 percent evaluation under Diagnostic Code 5125 for loss of use of the left hand now entitles him to an even higher rate of special monthly compensation, under 38 U.S.C.A. § 1114(m), for loss of use of both hands. See 38 C.F.R. § 3.350(c)(1)(i). In sum, a 60 percent schedular evaluation, and no greater, will be assigned for carpal tunnel syndrome of the left wrist beginning April 1, 2012, under 38 C.F.R. § 4.71a, Diagnostic Code 5125. Additionally, the Veteran will be granted special monthly compensation under 38 U.S.C.A. § 1114(m) effective April 1, 2012. ORDER For the period from July 26, 2004 to May 19, 2008, entitlement to a 40 percent evaluation for carpal tunnel syndrome of the left wrist is granted, subject to the laws and regulations governing the award of monetary benefits. For the period from May 20, 2008 to December 14, 2011, entitlement to an evaluation in excess of 40 percent for carpal tunnel syndrome of the left wrist is denied. For the period beginning April 1, 2012, entitlement to a 60 percent evaluation for carpal tunnel syndrome of the left wrist is granted, subject to the laws and regulations governing the award of monetary benefits. As of April 1, 2012, entitlement to special monthly compensation based on loss of use of both hands is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs