Citation Nr: 1322501	
Decision Date: 07/15/13    Archive Date: 07/24/13

DOCKET NO.  09-06 786A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a disability rating for right (major) carpal tunnel syndrome in excess of 10 percent.  

2.  Entitlement to a disability for hypertension in excess of 10 percent prior to September 10, 2012 and 20 percent since September 10, 2012.  


REPRESENTATION

Appellant (the Veteran) is represented by: Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The Veteran had active service from July 1982 to December 1982 and from January 1984 to March 1992.  

The appeal as to the rating for right carpal tunnel syndrome comes before the Board of Veterans' Appeals (Board) from a January 2013 Order of the United States Court of Appeals for Veterans Claims (CAVC).  

The appeal as to the rating for right carpal tunnel syndrome was previously adjudicated by the Board in a July 2012 decision, in which the Board denied an increased rating for right carpal tunnel syndrome.  The Veteran appealed the Board's July 2012 decision to the CAVC.  A Joint Motion for Partial Remand (Joint Motion) was adopted by the CAVC.  The CAVC's Order vacated that portion of the Board's July 2012 decision which denied an increased rating for right carpal tunnel syndrome and remanded the issue back to the Board for development as specified in the Joint Motion.  The CAVC's Order did not disturb the Board's decision to grant service connection for left carpal tunnel syndrome.  The Board's decision with respect to that matter is final.  

In July 2012, the Board remanded the appeal regarding an increased rating for hypertension for additional evidentiary development.  It has since been returned to the Board for further appellate action.  In a February 2013 rating decision, the RO granted an increased rating of 20 percent for hypertension, and made the increase effective September 10, 2012.  That issue was not a subject of the CAVC Order, as no decision was rendered by the Board regarding that issue. 

In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to insure a total review of the evidence.  




FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate this appeal has been accomplished.

2.  For the entire period of this appeal, the Veteran's right carpal tunnel syndrome has been manifested by mild incomplete paralysis of the median nerve.

3.  Prior to September 10, 2012, the Veteran's hypertension was manifested by systolic pressure that is predominantly less than 200 and diastolic pressure that is predominantly less than 110.  

4.  Since September 10, 2012, the Veteran's hypertension has been manifested by diastolic pressure that is predominantly less than 120.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating higher than 10 percent for right carpal tunnel syndrome have not been met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124, 4.124a, Diagnostic Codes 8515, 8715 (2012).

2.  The criteria for a disability rating higher than 10 percent for hypertension were not met for any portion of the period prior to September 10, 2012.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2012).

3.  The criteria for a disability rating higher than 20 percent for hypertension have not been met for any portion of the period since September 10, 2012.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3. 

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57.  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

Right Carpal Tunnel Syndrome

In a January 1994 rating decision, the RO granted service connection for right carpal tunnel syndrome and assigned an initial rating of 10 percent, pursuant to Diagnostic Code 8599-8515 (median nerve paralysis), effective March 29, 1992.  The current appeal arises from a claim for increase received at the RO on December 15, 2006.  

Under Diagnostic Code 8515, a 70 percent rating requires complete paralysis of the median nerve of the major upper extremity.  A 60 percent rating requires complete paralysis of the median nerve of the minor upper extremity.  Complete paralysis is demonstrated where the hand is inclined to the ulnar side; the index and middle fingers are more extended than normally; there is considerable atrophy of the muscles of the thenar eminence; the thumb is in the plane of the hand (ape hand); pronation is incomplete and defective; there is 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 is weakened; there is pain with trophic disturbances.  

Lesser ratings are available for incomplete paralysis.  A 50 percent rating requires severe incomplete paralysis of the major upper extremity.  A 40 percent rating requires severe incomplete paralysis of the minor upper extremity.  A 30 percent rating requires moderate incomplete paralysis of the major upper extremity.  A 20 percent disability rating requires moderate incomplete paralysis of the minor upper extremity.  A 10 percent rating is assigned for mild incomplete paralysis of the median nerve of either upper extremity.  38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8615, 8715 (2012).  

The term "incomplete paralysis" used in reference to evaluation of peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each 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.  38 C.F.R. § 4.124a (2012).  

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.  The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate incomplete paralysis.  38 C.F.R. § 4.123 (2012).  

Neuralgia 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.  38 C.F.R. § 4.124 (2012).  

In the December 2006 claim for an increased rating, the Veteran asserted that her right carpal tunnel syndrome had increased in severity and warranted an increased evaluation.  In the notice of disagreement, she made no particular assertions other than that she disagreed with the 10 percent rating.  On the VA Form 9, she simply noted that the disability was chronic, a claim which it is important for the Veteran to understand only supports the current evaluation, as if this disability were not "chronic" there would be no basis for the 10 percent evaluation, let alone a higher evaluation.   

Historically, the Veteran was seen in February 1992 for complaints of left arm numbness.  An EMG and nerve conduction velocity study was ordered regarding both upper extremities.  A March 1992 nerve conduction velocity study from Southeast Alabama Medical Center reveals findings consistent with mild right carpal tunnel syndrome that was subclinical in nature, providing evidence against this claim.   

Pertinent to the period on appeal, testing in March 2006 revealed bilateral carpal tunnel syndrome with abnormal findings only for the abductor pollicis brevi.  The Veteran was noted to have a weak grip and patchy sensory involvement of the hands.  A March 2006 physical evaluation from J. E., M.D., conveys that the Veteran complained of "some numbness" in her right wrist and hand associated with her diagnosed right carpal tunnel syndrome.  

At the August 2007 VA examination for compensation purposes, the Veteran complained of progressive right hand tingling and weakness; right upper extremity pain involving the area from the palm to the shoulder; and right hand incoordination which impaired her ability to pick up small objects.  She clarified that her symptoms were exacerbated by repetitive activities.  The Veteran was noted to use a right wrist splint.  On examination of the right upper extremity, the Veteran exhibited decreased sensation to light touch over the palm and the middle finger; findings for pain were normal; position sense was normal; reflexes were normal; there were no tremors or abnormal movements; there was no associated joint impairment, muscle atrophy, or abnormal muscle tone.  The Veteran was diagnosed with right carpal tunnel syndrome with median nerve neuralgia.  Neither paralysis nor neuritis was present.  

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran's right carpal tunnel syndrome has been manifested symptomatology that is like or similar to mild incomplete paralysis, and that moderate incomplete paralysis is not more nearly approximated than mild incomplete paralysis during any portion of the period on appeal.  

The finding of the August 2007 VA examiner that the Veteran does not have paralysis or neuritis, but has neuralgia, has significance in the maximum rating that can be applied.  As set out above, neuralgia is to be rated according to the same criteria as paralysis or neuritis, but with a maximum rating equal to moderate incomplete paralysis.  

The ratings for incomplete paralysis do not specify the type of symptomatology that is necessary, but specify only the degree.  It is logical therefore to interpret the regulation, which lists complete paralysis first, as intending that the type of symptomatology set out under complete paralysis would be the same type found under incomplete paralysis, but to a greater degree.  

In this case, there are no findings like or similar to inclination of the right hand to the ulnar side, the index and middle fingers being more extended than normally.  There are no findings like or similar to considerable atrophy of the muscles of the thenar eminence.  Indeed, the August 2007 examiner found no atrophy or loss of muscle tone.  There are no findings like or similar to the thumb being in the plane of the hand (ape hand).  There are no findings like or similar to incomplete and defective pronation.  There are no findings like or similar to absence of flexion of the index finger and feeble flexion of middle finger.  There are no findings like or similar to the Veteran not being able to make a fist, with the index and middle fingers remaining extended, or that she cannot flex the distal phalanx of thumb, or that she has defective opposition and abduction of the thumb, at right angles to palm.  There are no findings like or similar to weakened flexion of the wrist.  While the Veteran has reported a weak grip, there is no similar complaint or finding regarding the wrist.  While there is pain, there is no evidence of trophic (nutritional) disturbances.  See Black v. Brown, 10 Vet. App. 279, 280 (1997) (noting that 'trophic' is defined in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th ed. 1994) as pertaining to nutrition).  

The Veteran's symptoms of diminished manual dexterity and decreased sensation to light touch appear to be confirmed on examination.  However, there is inconsistent evidence regarding the presence of these and other symptoms on examination.  The Veteran's report of perceived weakness appears at odds with the finding that there is no muscle atrophy or loss of muscle tone.  Moreover, a private evaluation in December 2010 reveals a denial of localized numbness, tingling, and weakness.  Reports of numbness and tingling, as reported to the VA examiner, were denied when the Veteran was examined for other purposes.  Private evaluations for a thyroid disability in February 2007 and September 2007 revealed that the Veteran denied numbness or tingling.  All extremities had normal pulses and no edema.  A June 2006 pain assessment reveals the Veteran's level of pain and locations of pain at that time, as reported by her; however, while the Veteran noted pain in her left forehead and left shoulder, she did not describe pain in her right hand or wrist.  She also described her pain as intermittent.  A February 2006 nursing note also requested that the Veteran describe the location and intensity of any pain.  She described pain in the left shoulder and neck.  She did not describe any pain in her right hand or wrist, providing evidence against her own claim.  

This is not a silent record regarding pain.  The Veteran was evaluated on these occasions and specifically asked to indentify where she was experiencing pain.  It is significant to the Board that she did report pain, but did not report pain affecting her right upper extremity.  Thus, while the Veteran may experience pain, numbness, tingling, and weakness at times, these symptoms are apparently not constant, but are intermittent.  The intermittent nature of the symptoms supports the Board's finding that the level of incomplete paralysis is no more than mild.

Of great significance in establishing any disability rating is the effect of the disability on employment.  In this case, the August 2007 VA examiner commented that there were significant effects regarding the Veteran's occupation and these effects were described as decreased right hand manual dexterity.  However, the Veteran reported that she was working full time and had been at the same job for the past 20 years.  She also reported that she had lost only 3 weeks over the past 12 months, and she attributed part, if not all, of the days lost to hypertension.  In other words, she did not specifically attribute any days lost to carpal tunnel syndrome.  

The Veteran is competent to describe her symptoms and the effect they have on employment.  However, in this case, she has not described how a decrease in manual dexterity has affected her job.  Indeed, as noted above, she has provided quite little information regarding her symptomatology or its effect on her life, but has simply asserted that a higher rating is warranted.  Based on the evidence of record, including the Veteran's assertions, the Board finds that a decrease in manual dexterity, perceived weakness, pain, and other symptoms, have been intermittent and have had minimal or mild occupational effect.  

In finding that the Board had not adequately discussed or explained why moderate incomplete paralysis is not approximated in this case, the parties to the Joint Motion specifically noted a finding in the Board's prior decision, interpreting the August 2007 VA examiner, that the Veteran's occupational activities were significantly impaired by her decreased right hand dexterity.  In fact, the August 2007 examiner reported "[s]ignificant [e]ffects" on occupation.  

The parties to the Joint Motion emphasized the word "significantly" (as used in the Board's decision) as though the word necessarily implies a higher degree of impairment than "mild".  The Board finds that while the word "significantly" or "significant" suggests a measurable or noticeable amount or degree, it does not suggest or imply any specific amount or degree.  While the word implies an effect that is noticeable, this fact is acknowledged by the Board and is established in the record by the assignment of a 10 percent rating and the corresponding description of mild incomplete paralysis, a "chronic" and "significant" disability that, at this time, happens to be mild.  It is not a lucid basis for anything else. 

Also significant to the Board are findings of the August 2007 examiner regarding the effect of the disability on activities of daily life.  These findings are applicable to a determination of occupational effect as well.  The examiner found mild effect on chores, exercise, and sports.  There was no effect on shopping, recreation, traveling, feeding, bathing, dressing, toileting, and grooming.  Thus, in no case was a degree of effect noted that was more than mild.  Indeed, mild effect was only noted for chores, exercise, and sports.  There was no effect noted for any of the other activities.  These clinical findings support the Board's finding that mild incomplete paralysis is the most accurate description in this case.  In fact, some of the evidence in this case does not support the current evaluation.     

The Board understands and acknowledges that of primary concern to the Veteran is the pain associated with the disability.  However, it is important for the Veteran to understand that, although pain may cause a functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  In this case, functional loss appears to be limited to an intermittent decrease in manual dexterity and intermittent perceived weakness.  As discussed above, this appears to have had a minimal or mild impact on the Veteran's employment and daily activities.  

The Board also notes that, without some problems associated with the Veteran's right carpal tunnel syndrome, there would be no basis for the current 10 percent rating.  The 10 percent rating is an acknowledgement that the Veteran's ability to engage in employment and activities of daily life is impaired, and that this impairment is "significant".  

In sum, the Veteran's service-connected right carpal tunnel syndrome is manifested by occasional pain, numbness, tingling, and decrease in manual dexterity.  Such symptomatology is entirely contemplated by the 10 percent disability rating assigned, and the criteria for a higher rating are not met.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Hypertension

In a January 1994 rating decision, the RO granted service connection for hypertension and assigned an initial rating of 10 percent, pursuant to Diagnostic Code 7101 (hypertensive vascular disease), effective March 29, 1992.  In a February 2013 rating decision, the RO assigned an increased 20 percent rating for hypertension pursuant to Diagnostic Code 7101, effective September 10, 2012, the date of a VA examination.  

Under Diagnostic Code 7101, hypertension and isolated systolic hypertension are assigned a 60 percent rating where diastolic pressure is predominantly 130 or more; a 40 percent rating is assigned where diastolic pressure is predominantly 120 or more; a 20 percent rating is assigned where diastolic pressure is predominantly 110 or more, or where systolic pressure is predominantly 200 or more; a 10 percent rating is assigned where diastolic pressure is predominantly 100 or more, or where systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  Note (1).  

During the period on appeal, the Veteran's blood pressure has been recorded as follows:

Date
Systolic/
Diastolic
Date
Systolic/
Diastolic
Feb 06
137/
74
Oct 07
160/
98
Feb 06
168/
95
Nov 07
132/
78
Apr 06
157/
94
Apr 08
190/
120
May 06
147/
78
Jun 09
160/
94
May 06
130/
70
Nov 09
162/
102
Aug 06
120/
80
Dec 10
156/
92
Oct 07
140/
110
Apr 10
150/
100
Feb 07
124/
78
Sep 12
178/
120
Aug 07
190/
96
Sep 12
170/
110
Sep 07
110/
70
Sep 12
160/
104

None of the systolic readings is 200 or more.  While prior to September 10, 2012, there is a single diastolic reading of 120 and a single diastolic reading of 110, in light of 15 readings that are below 110, it cannot be said that the predominant diastolic reading is 110 or more during that period.  Indeed, the September 2012 VA examiner, after reviewing the record, found that the Veteran did not have a history of diastolic blood pressure elevation that was predominantly 100 or more.  Accordingly, prior to September 10, 2012, the criteria for a disability rating higher than 10 percent for hypertension are not met and are not more nearly approximated than are the criteria for a 10 percent rating.  

Since September 10, 2012, there is a single diastolic pressure reading of 120.  In light of two readings that are less than 120, it cannot be said that the diastolic readings since September 10, 2012 are predominantly 120 or more.  Accordingly, the Board finds that, since September 10, 2012, the criteria for a disability rating for hypertension in excess of 20 percent are not met and are not more nearly approximated than are the criteria for a 20 percent rating.  

For these reasons, the Board finds that the weight of the evidence is against a disability rating in excess of 10 percent for hypertension prior to September 10, 2012, and is against a disability rating in excess of 20 percent since September 10, 2012.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Extraschedular Consideration

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  If the evidence raises the question of entitlement to an extraschedular rating, 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.  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.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009).

The Board acknowledges that it is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  The Board has attributed all potentially service-connected symptoms to the Veteran's right carpal tunnel syndrome and hypertension in considering whether the Veteran is entitled to an extraschedular rating.  

Regarding right carpal tunnel syndrome, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected symptomatology.  The evidence shows that there is intermittent tingling, numbness, pain, weakness, and incoordination, which are exacerbated by repetitive activities.  The criteria specifically provide for ratings based on the presence of sensory disturbance as well as functional impairment resulting from neuritis, neuralgia and paralysis, up to and including complete paralysis of the affected nerve.  Such factors are explicitly part of the schedular rating criteria.  Moreover, higher ratings are available where the appropriate degree of impairment is demonstrated.  

In addition, the schedular criteria fully contemplate the Veteran's service-connected hypertension.  The criteria provide for specific ranges of elevated blood pressure, as well as for the requirement of medication for treatment.  The criteria provide for higher ratings where the appropriate symptomatology is shown.  The Board also notes that the September 2012 VA examiner, after a review of the record and examination of the Veteran, specifically found that there was no impact of the Veteran's hypertension on the ability to work.  

Because the schedular rating criteria are adequate to rate each disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met.  38 C.F.R. § 3.321(b)(1). 

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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).

The 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 Veteran submitted her claim for increased ratings in December 2006.  She was sent a letter in August 2007 which advised her of the information and evidence necessary to substantiate the claims.  That letter also advised her as to how disability ratings and effective dates were assigned in the event of a successful claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Since the August 2007 letter was sent to the Veteran prior to the initial adjudication of the claim in November 2007, there exists no error in the timing of this notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the CAVC that was subsequently vacated by the Federal Circuit.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  In short, VA has complied with its duty to notify the Veteran in this case.

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and available private treatment records, and the Veteran's written assertions.

In conjunction with her claim, the Veteran identified private treatment records from the Central Alabama VA Health Care System, as well as from private healthcare providers Dr. G.K., Dr. E., Cascals Clinic, Dr. J.P., and Dr. J.J.  All records were obtained by the RO except those from Dr. J.J.  An initial request was made for Dr. J.J.'s records in April 2008, with a follow-up request in January 2009.  The RO received no response to either request.  The Veteran was informed of the RO's attempts and of the lack of response.  

VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers.  Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.  If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.  See 38 C.F.R. § 3.159(c)(1) (2012).  

Here, the Board finds that the two requests made by the RO satisfies VA's duty to assist regarding treatment records from Dr. J.J. and no additional development is necessary.  

Regarding right carpal tunnel syndrome, the Veteran was afforded a VA examination in August 2007 to address the nature and manifestations of the disability.  This examination is adequate to evaluate the claim because it was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The examination includes findings that are pertinent to the rating criteria and that are consistent with the record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).

The Board has reviewed the Joint Motion to determine whether the parties have included stipulations that would necessitate a new examination for right carpal tunnel syndrome.  The Board is bound by the findings contained in the Joint Motion, as adopted by the CAVC.  See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997).  The stipulations contained in the Joint Motion are limited to a finding of inadequacy in the Board's discussion of the evidence of record and how that evidence relates to the rating criteria.  There is no suggestion that the clinical evidence is inadequate or that the disability has significantly worsened since the August 2007 VA examination.  Similar to the Joint Motion, the June 2007 informal hearing presentation of the Veteran's representative does not identify any worsening in the disability since the most recent examination.  Accordingly, the Board finds that the medical evidence is adequate and no additional development for a new VA examination is necessary.  

Regarding hypertension, while the issue is not subject to the Joint Motion, the Board remanded the issue in July 2012 for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Board's first remand instruction was:

Contact the Veteran and request that she provide information as to all treatment of her hypertension after 2006, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and the appropriate releases, the RO should contact Bullock County Hospital and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record.  If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).  

In August 2012, the Appeals Management Center (AMC) sent the Veteran a letter requesting that she complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for Bullock County Hospital and any other private health care providers that have treated her for hypertension since 2006 so that treatment information could be obtained.  She was advised that she may want to obtain and send the information herself.  The Veteran did not return the Form 21-4142 but submitted treatment records directly.  The Board finds that this action complies with the first remand instruction.  

The Board's second remand instruction was:

Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after November 2008.  

The AMC obtained updated VA clinical records since November 2008 and posted them to the Virtual VA system.  The Board finds that this action complies with the second remand instruction.  

The Board's third remand instruction was: 

Schedule the Veteran for a VA examination for compensation purposes in order to determine the nature and severity of her service-connected hypertension.  All indicated tests and studies should be accomplished and the findings then reported in detail.  The examiner should express an opinion as to the impact of the Veteran's hypertension upon her vocational pursuits.  All relevant medical records, including the claims folders, should be made available to the examiner for review of pertinent documents therein.  The examination report should specifically state that such a review was conducted.  

The AMC obtained a VA examination of the Veteran in September 2012.  The examination report included an opinion regarding the effect of the disability on the Veteran's ability to work.  The examiner confirmed a review of the claims file.  The Board finds that this action complies with the second remand instruction. 

In addition, the Board finds that the September 2012 examination is adequate to evaluate the claim as it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  The examination report includes findings that are pertinent to the rating criteria and that are consistent with the record.  Nieves-Rodriguez, 22 Vet. App 295.

The remaining remand instruction pertained to a review of the record by the AMC and a readjudication of the claim.  Substantial compliance with these instructions is apparent from the February 2013 rating decision and supplemental statement of the case.  As there has been substantial compliance with the Board's remand instructions, the Board finds that additional remand of this issue is not necessary.  

Neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the appeal that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

A disability rating for right carpal tunnel syndrome in excess of 10 percent is denied.  

Prior to September 10, 2012, a disability rating for hypertension in excess of 10 percent is denied.  

Since September 10, 2012, a disability rating for hypertension in excess of 20 percent is denied.  


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs