Citation Nr: 1326023 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 06-22 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for carpal tunnel syndrome of the right wrist prior to April 27, 2013. 2. Entitlement to greater than a 10 percent rating for carpal tunnel syndrome of the right wrist beginning April 27, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1981 to December 2003. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a March 2009 decision, the Board denied service connection for left foot disorder, right wrist disorder, left wrist disorder, right hand disorder, and left hand disorder; granted service connection for right hip disorder, left hip disorder, right knee disorder, and left knee disorder; and remanded the issues of increased ratings for thoracolumbar arthritis, residuals of an injury to the great toe of the right foot, and carpal tunnel syndrome of the right wrist for further development. In a July 2011 decision, the Board denied entitlement to a higher evaluation for thoracolumbar arthritis and again remanded the issues of increased ratings for residuals of an injury to the great toe of the right foot and carpal tunnel syndrome of the right wrist for further development. In February 2013, the Board increased the Veteran's rating for residuals of an injury to the great toe of the right foot to 10 percent and remanded the remaining issue for further development. In a May 2013 rating decision, the Appeals Management Center increased this evaluation to 10 percent, effective April 27, 2013, based on mild incomplete paralysis of the medial nerve. Inasmuch as a higher rating is available and the Veteran is presumed to be seeking the maximum available benefit for a given disability, the claim remains viable on appeal, as reflected on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT During the appeal period, the Veteran's carpal tunnel syndrome of the right wrist has been characterized by mild symptoms, including occasional pain, numbness, and tingling, but not by loss of motion or other functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no more, for carpal tunnel syndrome of the right wrist prior to April 27, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.124a, Diagnostic Code 8515 (2012). 2. The criteria for an initial rating higher than 10 percent for carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5215, 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran's increased rating claim for carpal tunnel syndrome of the right wrist arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's March 2009, July 2011, and February 2013 remands, VA has obtained additional VA outpatient treatment records and associated them with the claims folder. VA provided the Veteran with a medical examination in April 2013. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disability, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Additionally, the Veteran underwent a May 2013 electromyogram (EMG) that has been associated with the claims file. Thus VA has complied with the March 2009, July 2011, and February 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Service connection was granted for carpal tunnel syndrome of the right wrist in a June 2004 rating decision. This decision assigned a noncompensable (0 percent) evaluation effective January 1, 2004. The Veteran appealed that decision. See Fenderson v. West, 12 Vet. App. 119 (1999). In a May 2013 rating decision, this evaluation was increased to 10 percent, effective April 27, 2013, thereby creating a staged disability evaluation. The Board must evaluate this claim in its entirety to determine whether this or an alternately staged evaluation is most appropriate. See id. As explained below, the Board finds that the evidence of record supports a 10 percent evaluation for the Veteran's carpal tunnel syndrome of the right wrist throughout the entire appeals period. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Currently, the Veteran's carpal tunnel syndrome is rated under Diagnostic Code 8515 for impairment of the medial nerve. The medical evidence of record indicates that the Veteran is right-handed; thus this is her major wrist for rating purposes. Under Diagnostic Code 8515, mild incomplete paralysis of the major wrist warrants a 10 percent rating. 38 C.F.R. § 4.124a. Moderate incomplete paralysis of the major wrist warrants a 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Severe incomplete paralysis warrants a 50 percent rating. Id. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 70 percent disability rating. Id. The Board notes that the terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, the Board notes that the Veteran's carpal tunnel syndrome was initially rated under Diagnostic Code 5020 for synovitis and is rated on limitation of motion as degenerative arthritis. 38 C.F.R. § 4.71. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist. 38 C.F.R. § 4.71a. Ankylosis of the wrist is rated under Diagnostic Code 5214. 38 C.F.R. § 4.71a. Favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist; ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist; and unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist. 38 C.F.R. § 4.71a. A Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. VA treatment records note a history of carpal tunnel syndrome in the right wrist with complaints of pain off and on for the last one and a half years of service. See December 2003 VA treatment record. Later records during the pendency of the appeal note the Veteran's history of carpal tunnel syndrome in the right wrist, while specifically finding no current concerns. See e.g., February 2007 and December 2009 VA treatment records. In February 2004, the Veteran underwent a VA examination in conjunction with this claim. At that time, she denied pain at night and did not use a brace. She had full range of wrist motion without any joint deformity, swelling, erythema or warmth appreciated. There was no pain on palpation. In her June 2005 Notice of Disagreement, the Veteran indicated that her carpal tunnel syndrome caused daily pain and affected her current employment because she uses a computer 90 percent of the work day. In April 2009, the Veteran underwent another VA examination in conjunction with this claim. At that time, the Veteran complained of diffuse bilateral hand pain in dorsal aspects of metacarpophalangeal joints, occasional numbness and tingling in fingers associates with upper arm position, and stiffness. She was receiving no current treatment for the condition. Physical examination found no motor function impairment and normal sensory function findings. No nerve dysfunction or effect on occupation was shown. The Veteran failed to report for a scheduled electromyogram (EMG). The examiner diagnosed the Veteran with old right carpal tunnel syndrome, resolved, with no concrete evidence of current ongoing carpal tunnel syndrome. In her June 2010 letter, the Veteran noted lifestyle changes she had made to alleviate the pain of her carpal tunnel syndrome, including use of ergonomic keyboard, chair, and desk at work. She also stated that her pain varied based on activity level, noting increased pain when she was taking piano lessons, dicing vegetables, or gardening. She attached a pain journal, which documented three complaints of pain, tingling, and numbness in her right wrist and hand during the months of March and April 2009 and one instance of popping/clicking. Private treatment records dated September 2011 note that the Veteran sprained her right wrist while playing tennis. In October 2011, the Veteran underwent another VA examination in conjunction with this claim. At that time, she had normal muscle strength, normal reflexes, and a normal sensory exam. There was no atrophy, no trophic changes, and no associated scars. Both Phalen's sign and Tinel's sign were negative. This examination notes subjective complaints of mild intermittent pain. There was no complete or incomplete paralysis of the median nerve. The Veteran complained of weakness during exacerbations, but was not having an exacerbation on the day of this examination. The Veteran's right wrist carpal tunnel syndrome did not exhibit weakened movement, excess fatigability, or incoordination during this examination. Pain was completely subjective. There was no objective evidence of pain that would significantly limit the Veteran's functional abilities either during a flare-up or repeatedly over a period of time. In April 2013, the Veteran underwent another VA examination in conjunction with this claim. At that time, the Veteran reported flare-ups of increased pain and tingling of the right hand, but no weakness. The Veteran had full range of motion in her right wrist with no objective evidence of painful motion. She was able to perform repetitive testing without functional loss or functional impairment. Results of muscle strength, sensory, and reflex testing were all normal. There was no ankylosis, arthritis, scars, trophic changes, or wasting of the intrinsic muscles of the hands. Both Phalen's sign and Tinel's sign were negative. The examiner found that the Veteran had very mild carpal tunnel syndrome of the right wrist without motor weakness and this disability did not impact the Veteran's ability to work. In May 2013, the Veteran underwent an EMG in conjunction with this claim. At that time, the Veteran reported symptoms that waxed and waned over the years with her current symptoms including some intermittent numbness and tingling mainly in the middle finger, perhaps precipitated by keyboard work. Right median motor and digital sensory conduction values fell within the normal range. The medial digital sensory peak latency measured from the thumb is mildly delayed relative to the radial digital sensory peak latency measured from the thumb. Right ulnar motor and digital sensory conduction studies were normal. Right radial digital sensory conduction studies were normal. There was electrical evidence of a right median mononeuropathy at the wrist level, which was demyelinating in nature and consistent with very mild right carpal tunnel syndrome. There was no evidence of ulnar neuropathy or sensory motor polyneuropathy of the right upper extremity. The neurologist advised the Veteran to go for OT evaluation and treatment including provision of wrist splints to wear during sleep. Based on the above, the Veteran's carpal tunnel syndrome of the right wrist most nearly approximates the criteria for a 10 percent evaluation under Diagnostic Code 8515 throughout the rating period on appeal. Specifically, her symptoms have included occasional pain, numbness, and tingling, but not limitation of motion or other functional loss. The existing staged rating was based in part on the findings of the May 2013 EMG, which showed right median mononeuropathy at the wrist level and mildly delayed median digital sensory peak latency measured from the thumb. The Veteran had not undergone a prior EMG during the pendency of this appeal. Given that the Veteran's subjective complaints remained constant, the Board does not find a clear increase in her symptoms at that time. Rather, the Board determines instead that the May 2013 EMG provided objective corroboration of the degree of disability present throughout the appeals period. Although the April 2009 VA examiner opined that there was no evidence of current carpal tunnel syndrome at that time, the Board finds that the Veteran's lay reports of symptoms, particularly in light of the May 2013 EMG, establish symptoms equivalent to mild incomplete paralysis of the median nerve. The next higher rating of 30 percent requires a showing of symptoms equivalent to moderate incomplete paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. In this case, the Veteran's symptoms occur intermittently, have not impacted her employment, and have not caused her to seek additional treatment; therefore, these symptoms do not more nearly approximate moderate incomplete paralysis of the median nerve and the next higher rating is not appropriate. 38 C.F.R. § 4.7. The Board has also considered whether the Veteran's carpal tunnel syndrome of the right wrist would warrant a higher rating based on limitation of motion. In this case, the record does not show any loss of motion of the wrist due to this disability. While pain is noted, no additional functional impairment due to this pain has been shown. Furthermore, to the extent that the Veteran's reported pain has been considered in the assignment of a 10 percent disability evaluation under Diagnostic Code 8515, assignment of a compensable rating under a different diagnostic code for this same manifestation of her carpal tunnel syndrome of the right wrist would result in impermissible pyramiding. 38 C.F.R. § 4.14. Thus, there is no basis upon which to assign a compensable evaluation for the Veteran's carpal tunnel syndrome of the right wrist based on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32; Johnston, 10 Vet. App. 80. Based on the above, the Board finds that the preponderance of the evidence is in favor of an initial evaluation of 10 percent, but no more, for the Veteran's carpal tunnel syndrome of the right wrist for the entirety of the appeal and so the initial rating is un-staged to reflect consistent symptoms throughout the appeals period. In un-staging the previous evaluation, the Veteran's claim for a higher rating than 10 percent as of April 27, 2013, is denied. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b) (1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b) (1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as ankylosis or paralysis, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. The Board has also considered whether the Veteran has raised a claim for a total disability rating for individual unemployability (TDIU) based on her carpal tunnel syndrome of the right wrist. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that TDIU is an element of all appeals of an initial rating); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability); VBA Fast Letter No. 13-13 (June 17, 2013) (requiring adjudication of expressly and reasonably raised TDIU claims). In this case, neither the medical nor lay evidence of record shows that the Veteran is unemployable. Therefore the issue of TDIU is not raised. The preponderance of the evidence is against the assignment of a rating greater than 10 percent disabling at any time during the appeal period. See Hart, supra. There is no doubt to be resolved, and an increased ratings beyond those granted by this decision are not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating of 10 percent for carpal tunnel syndrome of the right wrist prior to April 27, 2013, is granted, subject to the applicable regulations concerning the payment of monetary benefits. An initial rating higher than 10 percent as of April 27, 2013, is denied. ____________________________________________ J. MACIEROWSKI KIRBY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs