Citation Nr: 1320240 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-44 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for carpal tunnel syndrome of the right wrist. 2. Entitlement to an initial compensable rating for carpal tunnel syndrome of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to September 2006. This case is before the Board of Veterans' Appeals (Board) from a rating decision dated June 2007, of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that, among other things, granted service connection for bilateral carpal tunnel syndrome and assigned each wrist a noncompensable disability rating, effective October 1, 2006. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. FINDINGS OF FACT The medical evidence shows that the Veteran's bilateral carpal tunnel syndrome is manifested by complaints of bilateral wrist pain, paresthesias and tingling in the fourth and fifth digits of both hands, and a burning sensation across the wrist, along with reports of limited ability and strength, and fatigability in his wrists. He uses wrist braces/splints, exercised, and takes frequent breaks while working at a computer at work. There has been objective evidence of painful motion. CONCLUSION OF LAW 1. Throughout the appeal period, the criteria for the assignment of an initial evaluation of 10 percent, but no higher, for service connected carpal tunnel syndrome of the right hand have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.26, 4.124a, Diagnostic Code 8515 (2012). 2. Throughout the appeal period, the criteria for the assignment of an initial evaluation of 10 percent, but no higher, for service connected carpal tunnel syndrome of the left hand have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.26, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The appeal for a higher initial rating for bilateral carpal tunnel syndrome arises from the Veteran's disagreement with the rating assigned pursuant to the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained service treatment records (STRs) and VA treatment records. Additionally, the Veteran was provided VA examinations in September 2006 and June 2009 pertaining to the severity of his service-connected bilateral carpal tunnel syndrome. Barr v. Nicholson, 21 Vet. App. 303 (2007). There is no indication that his service-connected bilateral carpal tunnel syndrome has worsened since the date of the most recent examination, and hence an additional examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Legal Criteria Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is a factor to be considered. 38 C.F.R. § 4.59 (2012). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, the provisions regarding pyramiding do not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's carpal tunnel syndrome is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515, which addresses the median nerve. A 10 percent rating is appropriate for both the major and minor hand when there is mild incomplete paralysis of the median nerve. For moderate incomplete paralysis, a 30 percent rating is assigned for the major hand and a 20 percent rating is assigned for the minor hand. For severe incomplete paralysis, a 50 percent rating is assigned for the major hand and a 40 percent rating is assigned for the minor hand. A 70 percent rating is assigned for complete paralysis of the median nerve on the major side with such manifestations such as 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 plane of the hand (ape hand); pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to the palm; weakened wrist flexion; and pain with trophic disturbances. Complete paralysis of the minor hand is rated as 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a (2012). III. Analysis The Veteran contends that he is entitled to compensable disability ratings for the service-connected right and left carpal tunnel syndrome. By way of history, the Veteran's STRs show treatment for bilateral wrist pain and instability. STRs reveal a diagnosis of carpal tunnel syndrome that was treated with occupational therapy, activity modification, exercise, and wrist splints. An August 2006 record revealed objective findings of laxity of the left distal radioulnar joint with anteroposterior glide. The record noted that his pain has decreased somewhat through activity modification and the use of wrist stabilizing splints. However, the Veteran reported any forceful wrist extension or weight bearing on extension increased pain significantly. He tried to avoid aggravating activities whenever possible. He was treated with occupational therapy. The assessment noted that the Veteran had some improvements with the use of splints and activity modification of job tasks; however, he continued to demonstrate weakness, laxity, and pain mainly in the left wrist distal radioulnar joint. He was referred to orthopedic hand surgeon, who recommended conservative management using splints. On September 2006 VA pre-discharge examination, the examiner noted that the Veteran used splints when doing physical activity, lifting and using the computer. He experienced an improvement of symptoms with conservative management, and surgical recommendations were not made at this time. He had paresthesias and tingling in the fourth and fifth digits of both hands at this time. There was no muscle atrophy or weakness in the hands. On physical examination, range of motion studies revealed full dorsiflexion to 70 degrees, full palmar flexion to 80 degrees, full radial deviation to 20 degrees, and full ulnar deviation to 45 degrees, in the bilateral wrists. With repetitive motion, there was not any additional loss of range of motion. The examiner also noted that the Veteran's hand grasp was strong and there was no muscle atrophy of the bilateral wrist. Motor and sensory examinations were normal throughout. Deep tendon reflexes were symmetrical. There were no focal neurologic findings. The examiner provided a diagnosis of established right wrist carpal tunnel syndrome that is treated with conservative measures. By a rating decision in June 2007, the RO granted service connection for bilateral carpal tunnel syndrome and assigned separate initial noncompensable ratings, effective October 1, 2006, the day after discharge from military service. The Veteran appealed for higher ratings. VA treatment records include an October 2007 record that showed treatment for joint pain that was localized in the wrists. On physical examination, pain was elicited by motion of the wrist. A refill of Mobic 15 mg was refilled. He was issued two new wrist carpal tunnel braces to be worn at bedtime. In April 2009, he asked to renew his prescription of Mobic. On his July 2008 Notice of Disagreement, the Veteran reported that he still had wrist pain and had to wear a brace whenever he used the computer. In his present job, he used the computer daily. He also wore wrist braces when he slept approximately three times per week. He reported that he was constantly reminded of his limited wrist ability. He exercised and took medication to avoid being in constant pain. He acknowledged that before he left service, the medical records noted that his wrists got better with exercise; however, he was nowhere near "cured" of the pain. He had limited strength and ability in his wrists. He had to wear braces for any lifting or physical activities (such as yard work, etc.). On June 2009 VA examination, the Veteran reported that he was employed on a full-time basis and worked in electronic intelligence on an Air Force Base. He did not have any incapacitating episodes in the past 12 months. He was independent in his activities of daily living (ADLs) He reported that his carpal tunnel did not impede his occupation. He had complaints of a burning sensation across the wrists and pointed to the dorsal aspect of the wrists. The burning sensation appeared after prolonged work on the computer. The sensation lasted for several minutes because as soon as it appears, he stopped what he was doing and the pain gradually dissolves. He did not experience pain at rest. His treatment was activity modification, such as taking breaks and keeping his hands in a certain position while working at the computer to avoid prolonged strain. He also wore splints at times on the bilateral wrists while working on the computer. He wore splints occasionally at night when he had flare-ups. He had flare-ups several times per year and pain was alleviated by taking Motrin. He did not report numbness, paresthesias, or weakness. There was some fatigue, but no function loss. There was no interference with ADLs or work. Neurological examination noted that the Veteran was right-hand dominant. DTRs were +2/4, equal, and symmetrical, bilaterally, for triceps, biceps, and brachioradialis. There were no pathologic reflexes. There was no muscle atrophy in both hands. Strength testing to gravity and resistance was 5/5, grip strength was 5/5, it was strong and equal, bilaterally. The sensation to pinprick and light touch was normal and symmetrical. The active ranges of motion of the bilateral wrist were dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. With Phalen's, Tinel's, and reverse Phalen's testing, he had some burning sensation across the wrist with no other complaints. Phalen's and Tinel's tests were negative. The diagnosis noted that he was service-connected for bilateral carpal tunnel syndrome; there were no objective findings at this time. On his September 2009 Form 9, the Veteran restated his prior contentions and added that while at work he used other techniques to try to stay pain free, including taking frequent breaks, constantly stretching, and exercising at home. He still had occasional pain. He reported that he was seeking a 10 percent disability rating. In short, the aforementioned medical examination findings reveal little or no functional impairment of the left or right hand as a result of the service-connected carpal tunnel syndrome. Nevertheless, the Board cannot ignore the Veteran's complaints of bilateral wrist pain, paresthesias and tingling in the fourth and fifth digits of both hands, and a burning sensation across the wrist with Phalen's, Tinel's, and reverse Phalen's testing, along with his reports of limited ability and strength and fatigability in his wrists. He reported that he had flare-ups a couple times a year. He wore braces on his wrists at for any lifting or physical activities, night during flare-ups or approximately three times per week, and whenever he used the computer, which was on a daily basis at work. He had to do exercises, take frequent breaks at work, and take medication to avoid being in constant pain. Significantly, in this case the medical evidence also showed that during the appeal period the Veteran's carpal tunnel syndrome has been manifested by painful motion, however, his range of motion has been full and any functional impairment has been already been considered. The VA examination reports and treatment records as well as the Veteran's lay statements, shows that the Veteran has experienced mild incomplete paralysis of the median nerves of both hands. Therefore, under Diagnostic Code 8515, a 10 percent rating is warranted for mild impairment of the median nerve on either the minor or major side. A higher, 20 percent, rating is not warranted, because the neurologic examinations were otherwise normal, the objective medical evidence of record fails to show that the Veteran's right and left carpal tunnel syndrome has been characterized as more than mild, and he has not provided lay statements indicating otherwise. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's symptomatology more nearly approximates that of mild incomplete paralysis of the median nerve, and an initial rating of 10 percent, but not more for the entire period of the appeal for the service-connected right hand and left hand carpal tunnel syndrome is warranted with additional consideration of the bilateral factor under 38 C.F.R. § 4.26. See also 38 C.F.R. § 4.7. IV. Extraschedular Considerations The Board has also considered whether the Veteran's bilateral carpal tunnel syndrome disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, including complaints of bilateral wrist pain, paresthesias and tingling in the fourth and fifth digits of both hands, and a burning sensation across the wrist, along with his reports of limited ability and strength and fatigability in his wrists. He wore braces on his wrists, had to do exercises, and took frequent breaks at work and medication to avoid being in constant pain. An October 2007 treatment record found painful motion. The rating criteria also provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Board further notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Throughout the record, it has not been suggested that his bilateral carpal tunnel syndrome precludes his employment. In fact the Veteran has reported that his carpal tunnel syndrome does not impede his employment and that he has been employed full-time. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. ORDER Entitlement to an initial 10 percent rating for service connected carpal tunnel syndrome of the right wrist is granted. Entitlement to an initial 10 percent rating for service connected carpal tunnel syndrome of the left wrist is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs