Citation Nr: 1325022 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-06 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for right wrist carpal tunnel syndrome with right cervical radiculopathy. 2. Entitlement to an increased rating in excess of 10 percent for left wrist carpal tunnel syndrome with left cervical radiculopathy. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1986 to May 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In an August 2012 rating decision, the Veteran was awarded increased ratings of 10 percent effective December 19, 2008 for his service-connected carpal tunnel syndrome with cervical radiculopathy in his right and left wrists. The increased ratings constitute a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. The Veteran requested and was scheduled for a Board hearing in June 2013, but he canceled the request in May 2013. Thus, his request for a hearing is considered withdrawn. While the Veteran has not separately filed a formal claim for entitlement to a total disability rating due to service-connected disabilities, this matter has been raised on a derivative basis, as part of his claims for higher ratings for bilateral wrist carpal tunnel syndrome with bilateral cervical radiculopathy. Therefore, this matter is considered before the Board, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of a claim to reopen service connection for posttraumatic stress disorder and bipolar disorder has been raised by the record via a February 2011 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's bilateral wrist disability is manifested by subjective sensory complaints related to his hands and wrists including pain, weakness, and numbness; with objective findings of weakened grip strength right worse than left, crepitus in the right wrist with chronic right wrist sprain, reduced right median motor amplitudes of unclear clinical significance, and positive Tinel's and Phalen's tests. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left and right carpal tunnel syndrome with cervical radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). Where, as here, entitlement to compensation 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, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the increased rating claim was filed in December 2008. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. The Veteran is rated under Diagnostic Code 8510-8515. Diagnostic Code 8515 relates to impairments of the median nerve and provides that a 10 percent disability evaluation is assigned for mild, incomplete paralysis of the median nerve of the minor or major hand. Important for this case, a 20 percent disability evaluation is warranted for moderate, incomplete paralysis of the minor hand, and a 30 percent disability evaluation is contemplated for moderate, incomplete paralysis of the major hand. A 40 percent disability evaluation is warranted for severe, incomplete paralysis of the minor hand, and a 50 percent disability evaluation is contemplated for severe, incomplete paralysis of the major hand. A 60 percent disability evaluation is contemplated for complete paralysis of the minor hand, and a 70 percent disability evaluation is contemplated for complete paralysis of the major hand. 38 C.F.R. § 4.124a, DC 8515. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis 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 . In July 2008 the Veteran was seen at the VA reporting that both of his hands were going numb, especially after gardening. He had a positive Tinel's sign and Phalen's test. The Veteran had a nerve conduction study done at the VA in September 2008 that showed reduced right median motor amplitudes of unclear clinical significance but otherwise normal right and left median and ulnar nerve conduction responses. The Veteran, who reports he is right handed, underwent a VA examination in January 2009. He reported he has numbness mainly in the thumb, index, and middle finger of each hand. He said he has weakness, stiffness, and swelling in both wrists. He also reported instability, fatigability, and lack of endurance in both wrists. He rated the pain in his right wrist as a 2-3 on a scale to 10 and a 4-5 in his left wrist, with pain up to 9-10 in both wrists on flare-ups. He did not report any functional limitation on flare-ups. On examination, the examiner noted some crepitus in the Veteran's right wrist but normal muscles, no deformity, laxity, tenderness, or swelling. The Veteran had dorsiflexion to 70 degrees actively, palmar flexion to 32 degrees actively, radial deviation to 21 degrees actively, and ulnar deviation to 30 degrees actively. In the Veteran's left wrist, the examiner found no deformity, laxity, crepitus, or swelling, but noted it was tender anteriorly. The Veteran had dorsiflexion to 70 degrees actively, palmar flexion to 40 degrees actively, radial deviation to 25 degrees actively, and ulnar deviation to 32 degrees actively. The Veteran had a negative Tinel's sign bilaterally but reported a slight decrease in sensations of the tips of the right and left fingers, which the examiner noted was not consistent with a carpal tunnel problem. The Veteran demonstrated normal function with a good grip and normal strength and reflex. He showed no decrease in range of motion or functionality following repetitive use. X-rays were normal. The examiner diagnosed a chronic sprain in the Veteran's right wrist based on his finding of crepitus. He stated that physical examination, x-rays, and nerve conduction studies all indicated no carpal tunnel syndrome problems. At a February 2009 VA appointment the Veteran reported he sometimes loses control of grasping items in his hand. In a May 2009 statement the Veteran related that his wrists and lower arms hurt when typing. He stated that anything he does with his hands gets painful quickly, making them useless for five to ten minutes. He said he also drops things quite a bit and gets hard twitches/trembles in both hands when using them a lot. He also submitted an April 2006 neurological testing report with his statement, which the Board notes was considered by the RO at the time of the June 2006 rating decision. At an April 2011 VA appointment the Veteran reported numbness and coldness in the second and third fingers of his left hand, and the doctor stated that it was probably due to carpal tunnel syndrome, noting the Veteran was scheduled for electromyogram testing. His grip hand strength was found to be greater in his right hand than in his left. The Veteran underwent a VA examination in April 2011. Motor, reflex, and sensory examinations were found to be normal, although the Veteran reported decreased monofilament sensitivity to the finger tips in his left hand. The examiner reviewed nerve conduction studies done in May 2011 and September 2008 at the VA and concluded the Veteran does not have carpal tunnel syndrome in his right or left wrists. The May 2011 nerve conduction study showed sensory and motor responses within normal limits and the VA neurologist found no electrophysiological evidence to support focal neuropathy in either upper extremity. In October 2011 the Veteran reported intermittent fingertip numbness at a VA appointment, and in August 2012 he reported that his fingers were turning white and painful when cold. In addressing the facts of this case, it is again noted that the Veteran's currently assigned 10 percent rating reflects mild, incomplete paralysis of the median nerve of the minor or major hand. For the next higher rating to be assigned for either hand moderate, incomplete paralysis must be demonstrated. The Veteran has regularly complained of pain and numbness in his fingers as well as reporting that he sometimes drops things. In a May 2009 statement he reported experiencing twitches/trembles in both hands when using them a lot, but he did not mention that complaint at any VA examinations or VA medical appointments. However, on objective evaluation, evidence of the Veteran's complained of symptoms has been mild and intermittent at most. In July 2008 he had a positive Tinel's sign and Phalen's test. In April 2011 at a VA appointment he was found to have grip strength greater in his right hand than his left. Most objective studies have not shown symptoms. A nerve conduction study done in September 2008 found reduced right median motor amplitudes of unclear clinical significance but otherwise normal right and left median and ulnar nerve conduction responses. The same study done in May 2011 showed sensory and motor responses within normal limits. The January 2009 VA examiner found the Veteran had no deformity, laxity, or swelling in either wrist and normal range of motion. He demonstrated normal function with a good grip and normal strength and reflex, although there was crepitus in the right wrist with a diagnosis of chronic right wrist sprain. The April 2011 VA examiner found the Veteran to have normal motor, reflex, and sensory examinations. Both examiners concluded the Veteran does not have carpal tunnel syndrome. Although the Board recognizes the Veteran's subjective complaints of pain, numbness, and dropping things, the Board puts significant weight on the objective evidence that shows limited symptomatology. Even considering the Veteran's subjective complaints, the Board finds the evidence does not show the Veteran is entitled to a higher rating for any time period during the pendency of the appeal. Overall, the preponderance of the evidence is against the Veteran's claim for an increased rating. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected carpal tunnel syndrome that would render the schedular criteria inadequate. The Veteran's symptoms, including pain, numbness, and some problems with dropping things, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's carpal tunnel syndrome. In addition, the Board finds the record does not reflect that the Veteran's carpal tunnel syndrome markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that 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). While the Veteran has stated that he could not type because of his carpal tunnel syndrome and noted physical and mental problems on his job, there is no evidence in the record that the Veteran has asserted missing days of work solely due to his carpal tunnel syndrome during the time that he was working as a grounds crew chief. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate his claims and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates. Additional notice letters were provided in May 2009 and April 2011. Therefore, the duty to notify has been satisfied. VA also has a duty to assist the 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). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. The Veteran also submitted a lay statement. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations in January 2009 and April 2011. The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests. The examiners provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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, 16 Vet. App. 183. ORDER An increased rating in excess of 10 percent for right wrist carpal tunnel syndrome with right cervical radiculopathy is denied. An increased rating in excess of 10 percent for left wrist carpal tunnel syndrome with right cervical radiculopathy is denied. REMAND The issue of entitlement to a TDIU due to service-connected disabilities has been raised on a derivative basis in this case. The Veteran reported on a VA treatment record in February 2009 that he lost his job due to multiple medical problems including carpal tunnel syndrome, and was trying to get a total disability rating. While this is arguably an informal claim for a TDIU, it also is considered as part and parcel to his increased rating claim for carpal tunnel syndrome under the provisions of Rice v. Shinseki, 22 Vet. App. 447 (2009). On his VA Form 9 the Veteran stated that his typing work was severely hampered by his carpal tunnel syndrome. He also noted on his notice of disagreement in May 2009 that civilian employers did not like it when he had to stop working. He noted that typing with his hands caused them to hurt and made them useless for about 5 to 10 minutes. The record shows the Veteran's last job was working as a grounds crew chief and that he stopped working sometime around February 2009. The Veteran is presently service-connected for multiple disabilities including bilateral carpal tunnel syndrome (10% disabling each); adjustment disorder (30% disabling); lumbar spine disability (20% disabling); bilateral rotator cuff tendonitis (10% disabling each); cervical spine disability (10% disabling); bilateral knee tendonitis (10% disabling each); bilateral ankle tendonitis (10% disabling each); bilateral tinnitus (10% disabling); gastroesophageal reflux disease (10% disabling); bilateral elbow tendonitis (0% disabling each); bilateral hip degenerative joint disease (0% disabling each); nasal septum levodeviation (0% disabling); status post right hand long finger disability (0% disabling); abdominal scar (0% disabling); herpes simplex virus (0% disabling); and bilateral cervical radiculopathy (0% disabling each). His combined rating is 90% effective December 19, 2008 (with consideration of the bilateral factor of 5.7 percent). His orthopedic disabilities combine to greater than 40% and are also are considered as one disability as they affect a single bodily system. Therefore, the Veteran meets the schedular criteria for a TDIU (i.e., at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more). See 38 C.F.R. § 4.16(a). The determinative issue in this case is whether he is rendered unemployable either, as a result of his carpal tunnel syndrome alone, or combined with his other service-connected disabilities. A medical opinion is necessary to resolve this matter. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate examination to determine whether the Veteran's bilateral carpal tunnel syndrome with bilateral cervical radiculopathy, either alone or in aggregate with his other service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. The VA examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 3. Finally, readjudicate the remaining claim on appeal. If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs