Citation Nr: 1328025 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-32 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for a left wrist disability, to include De Quervain's tenosynovitis and carpal tunnel syndrome (CTS). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to January 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Board remanded this matter for additional development. After completing the requested actions, in February 2012, the Appeals Management Center in Washington, D.C. provided a supplemental statement of the case that continued the denial of a compensable rating for the Veteran's service-connected left wrist disability. FINDING OF FACT The Veteran's service-connected left (minor) wrist disability is manifested by pain, tenderness, numbness, and weakness resulting in decreased manual dexterity. Ankylosis of the wrist is not shown or alleged. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a 10 percent rating, but no higher, for a left wrist disability, to include De Quervain's tenosynovitis and CTS, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5215 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in October 2008 and in March 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter (including degree of disability), the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Historically, by a May 1999 rating decision, the Veteran was granted service connection and assigned a noncompensable rating for De Quervain's tenosynovitis, left wrist, pursuant to Diagnostic Code (DC) 5215, used to rate limitation of motion of the wrist. The Veteran's service treatment records show the Veteran was first seen for left wrist pain since May 1995. A July 1995 record notes a provisional diagnosis was rule out carpal tunnel syndrome, left wrist. At an orthopedic consultation, the Veteran denied specific trauma. It was noted that she worked as a typist/clerk. The impression was likely De Quervain's, left wrist (tenosynovitis, ".") . In December 1996, the Veteran was seen for left radial wrist pain for the past 9 months. On examination she had tenderness over the left thumb joint and pain with lifting, gripping, etc. In June 1998, the Veteran reported a history of left wrist pain for over 2 years and complaints of tenderness over the dorsum of the thumb. X-rays were normal. During a periodic medical examination in November 1998 the Veteran was diagnosed with left De Quervain's tenosynovitis, improving. A January 1999 VA medical examination reflects that the Veteran complained of left wrist pain for three years. The VA examiner noted that she carried a diagnosis of De Quervain's tenosynovitis. The Veteran stated that she awakened one morning with numbness and pain in her left first and second digits to her elbow. The diagnosis was De Quervain's tenosynovitis, left wrist and it was noted that she would see rheumatology. A February 1999 VA examination report reflects that the Veteran again reported a numb sensation from the left thumb to the forearm. Then she began to develop more pain, and trouble using the hand secondary to pain. She had flare ups in April 1998 and remained swollen for weeks. The overall impression was that the Veteran clearly had evidence of chronic de Quervain's tenosynovitis. A May 1999 private medical records notes that the Veteran had a primary medical history of carpal tunnel syndrome. In September 2008, the Veteran submitted her claim for an increased rating for her service-connected left wrist disability. In a September 2008 private medical record, Fernando Gonzales-Portillo, M.D. noted that the Veteran was seen for evaluation of paresthesias of both hand and arms for almost two months. The left side from the fingers to the elbow. The numbness if felt as a tingling sensation. This is off and on. No known triggers, but it is worse with typing, combing her hair or at night. She is awaken by the numbness and has to shake and rub her hands to get some relief. She had an EMG/NCS that was normal. She continues with the paresthesias. The impression was carpal tunnel syndrome, clinically she has CTS, but we could not prove by NCS. The Veteran was seen for a VA neurology consultation in September 2008, at which time she reported to the VA physician that she continued to experience numbness and tingling in her arms. It was noted that the Veteran was seen after her EMG study concerning neuropathy of both arms/hands. The symptoms were bilateral, right was worse. The VA physician additionally noted that the Veteran was seen for an electromyography by a private physician, Dr. Fernando Gonzales-Portillo, at which time her nerve conduction study (NCS) was normal and his findings, as reported above. In an October 2008 letter, a coworker of the Veteran stated that she has witnessed the Veteran had difficulty typing due to pain in her hands. There have been times when she has complained about her joints locking and numbness in her arms. The coworker furthered that while her productivity has not diminished, the distress in her face and her demeanor makes it very apparent that she is in tremendous amount of pain. An October 2008 VA joints examination report reflects that the Veteran stated she had been having numbness in her left hand including all fingers, hand, wrist on both palmar and dorsal surfaces, which radiates proximally to the elbow. The Veteran is right hand dominant. There was no history of an overall decrease in hand strength or a decrease in hand dexterity. Range of motion was normal for active and passive motion in all digits of all fingers and for all planes of the wrist, both active and passive. There was no pain with any range of motion. Range of motion testing revealed ulnar deviation from 0 to 45 degrees, radial deviation from 0 to 20 degrees, dorsiflexion (extension) from 0 to 70 degrees, and palmar flexion from 0 to 80 degrees. There was no additional loss of motion on repetitive use. It was noted that no x-rays were taken or needed. She was found to have tenderness. The diagnosis was left De Quervain's tenosynovitis, resolved. The VA examiner stated that he cannot explain her unusual symptoms of numbness on her hand which radiates proximally. The Veteran was seen for another VA neurology consultation in November 2008. The VA physician noted that the Veteran complained of bilateral upper extremity tingling and numbness for the past four months. In her left upper extremity, this extended from her elbow to her hand. The VA physician additionally noted that the Veteran had been seen by a private neurologist who conducted testing and provided an opinion on the Veteran's condition, that she likely has CTS, as reported previously. The assessment was bilateral upper extremity paresthesia. Possible early left carpal tunnel syndrome, clinically. A January 2010 VA medical record notes that the Veteran is diagnosed with CTS. An August 2010 private EMG examination report reflects that the Veteran had bilateral mild median neuropathies at the wrists ("carpal tunnel syndrome"). A February 2011 VA neurology consultation record reflects that the Veteran complained of bilateral upper extremity tingling for the past 6 months, that was intermittent, and involved all fingertips and progresses to involve her fingers and then the entire arm to the shoulders. This mainly occurs at night, awakens her from sleep, and she will shake her hands and arms for relief. It has improved since taken Neurontin and wearing wrist splints twice a weeks. She feels her hands are weak with difficulty opening jars or grasping objects. She types a lot with work with customer service billing. She received an ergonomic keyboard that has also helped. She denied neck pain or radicular symptoms. The assessment was very mild bilateral CTS. She was advised to consistently wear her wrist splints at night. A May 2011 VA peripheral nerves examination report reflects that the Veteran complained of intermittent numbness, tingling, and discomfort in the left hand including the thumb for several years. Symptoms noted as present by the examiner included weakness, numbness, pain, and paresthesia. Sensory examination of the left upper extremity was normal. The diagnosis provided by the examiner was left De Quervain's synovitis. It was noted that the effects on occupational activities was decreased manual dexterity. She has intermittent weakness and numbness of the left hand and cannot hold things for long periods of time. The VA examiner opined that the Veteran's symptoms of left wrist numbness and tingling was less likely as not associated with her service-connected left De Quervain's synovitis. He noted that the Veteran had an EMG/NCV study which was consistent with bilateral carpal tunnel syndrome. The Veteran's left wrist disability is currently rated pursuant to DC 5215, used to rate limitation of motion of the wrist. DC 5215 provides for a 10 percent disability rating where dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. Id. A rating higher than 10 percent is not warranted for limitation of motion of the wrist unless there is ankylosis. See 38 C.F.R. § 4.71a, DC 5214. Normal range of palmar flexion for the wrist is 80 degrees. Normal range of dorsiflexion is 70 degrees. Palmar flexion in line with the forearm equates to zero degrees of palmar flexion or dorsiflexion. See 38 C.F.R. § 4.71a , Plate I (2011). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (and swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that during the course of the appeal, the Veteran has consistently complained of numbness and pain in the left wrist. Carpal tunnel syndrome (CTS) has been diagnosed and it appears to be productive of similar symptoms associated with the service-connected De Quervain's tenosynovitis. To alleviate any confusion, the Veteran's left wrist CTS will be considered as part of the service-connected disability, particularly because the Veteran's symptomatology of the left wrist has remained consistent since discharge from service and it overlaps with the service-connected disability symptomatology. When it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). After reviewing all of the clinical evidence and subjective complaints of record, the Board finds that by resolving all reasonable doubt in favor of the Veteran that a 10 percent rating for a left wrist disability is warranted. Initially, the Board notes that the May 2011 VA examiner found that the Veteran's service-connected left wrist disability impacted her occupational activities in the form of decreased manual dexterity. Significantly, moreover, the Veteran has consistently reported left wrist pain and weakness throughout the appeal, symptoms which she is competent to report. See, e.g., Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(2). Moreover, the absence of arthritis does not preclude a compensable rating for painful motion. See Burton v. Shinseki, 25 Vet. App. 1 (2011); see also 38 C.F.R. § 4.59. Although the Board acknowledges the October 2008 VA examiner's finding that the Veteran's left wrist was without pain on range of motion testing, he did find tenderness, and during a February 2011 VA neurology consultation record, the Veteran indicated that her hands are weak and she had difficulty opening jars or grasping objects, indicating that her service-connected left wrist disability has impacted her range of motion to some extent. Thus, the Board finds that the evidence as a whole, including the objective medical findings of tenderness and the Veteran's credible and competent lay statements, are sufficient to find that a 10 percent rating for the Veteran's left wrist symptoms is warranted. However, at no time during the appeal period does her disability warrant a rating in excess of 10 percent. A higher scheduler rating for the service-connected left wrist disability would require ankylosis of the left wrist, which was not shown or even suggested here. Consideration is also given to whether a separate rating is warranted for any neurological component of the service-connected left wrist disability. The Veteran has complained of numbness along with the tingling and pain in the left wrist, and the Veteran is diagnosed with CTS. Diagnostic Code 8515 governs ratings for carpal tunnel syndrome, based on paralysis of the median nerve. Under Diagnostic Code 8515, ratings differ on the level of severity and the determination of which limb is involved, the major or the minor. The Veteran's left wrist is her minor wrist. A 10 percent rating is assigned for mild incomplete paralysis of the median nerve. A 20 percent disability rating is warranted for moderate incomplete paralysis of the minor hand, and a 40 percent rating is assigned for severe incomplete paralysis of the minor hand. The medical evidence does not show that the Veteran has incomplete paralysis of the left wrist. While EMG testing in August 2010 showed that the Veteran had mild CTS of the left wrist, there was no active entrapment and no evidence of an ulnar neuropathy or diffuse polyneuropathy. Furthermore, VA examinations of the upper extremities was normal as to both motor function and sensory function. There is no objective evidence of incomplete paralysis of the nerves of the left wrist. As such, there is no basis on which to assign a separate compensable rating for a neurologic component of the service-connected left wrist disability. The Board also finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The 10 percent rating for the Veteran's left wrist disability contemplates all of the symptoms attributable to the disability. The Veteran was not hospitalized after service for her left wrist disability, and while it reportedly causes her some difficulties at work (requiring an ergonomic keyboard) and decreased manual dexterity, the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment. Further, the schedular rating criteria contemplates the symptoms currently manifested by the Veteran's service-connected left wrist disability. The Board thus finds that the manifestations of the Veteran's symptoms do not qualify as an exceptional or unusual disability picture. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not reported losing time from work due to her service-connected left wrist disability, and the evidence does not show that she is unemployable as a result of that disability. Thus, a TDIU is not raised by the record. ORDER A 10 percent disability rating, but no higher, for the Veteran's service-connected left wrist disability, is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs