Citation Nr: 1329776 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 05-25 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for fibromyalgia. 2. Entitlement to an initial disability rating in excess of 10 percent for right carpal tunnel syndrome. 3. Entitlement to a separate rating for thoracic outlet syndrome. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from July 1982 to November 1994. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that in pertinent part denied service connection for fibromyalgia and chronic fatigue syndrome, denied increased ratings for dysthymia and irritable bowel syndrome, recharacterized the Veteran's disabilities of the upper extremities as right and left carpal tunnel syndrome (formerly rated as thoracic outlet syndrome), assigned evaluations for right carpal tunnel syndrome and left carpal tunnel syndrome, and denied a TDIU. In February 2008, the Board granted service connection for fibromyalgia, and remanded the remaining issues on appeal for additional development. In a March 2008 rating decision, the RO effectuated the Board's grant of service connection for fibromyalgia, and assigned a 20 percent disability rating. In December 2010, the Board denied entitlement to service connection for chronic fatigue syndrome, denied a disability rating in excess of 10 percent for left carpal tunnel syndrome, granted an increased disability rating of 50 percent for dysthymia, and granted an increased disability rating of 30 percent for irritable bowel syndrome. In addition, the Board remanded for additional development the issues of entitlement to an initial disability rating in excess of 20 percent for fibromyalgia, entitlement to an initial disability rating in excess of 10 percent for right carpal tunnel syndrome, entitlement to a separate rating for thoracic outlet syndrome, and entitlement to a TDIU. In a September 2012 rating decision, the RO granted entitlement to TDIU. As such, this issue is no longer on appeal. The remaining issues remanded in December 2010 are again before the Board for further review. The issue of entitlement to an initial disability rating in excess of 20 percent for fibromyalgia is addressed in the remand that follows the decision below. FINDINGS OF FACT 1. The Veteran's right carpal tunnel syndrome is not manifested by moderate paralysis. 2. Symptoms associated with the Veteran's previously diagnosed thoracic outlet syndrome mirror those associated with her carpal tunnel syndrome. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right carpal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.124a, Diagnostic Code 8515 (2013). 2. The criteria for a separate disability rating for thoracic outlet syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.14 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim 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, and additional notice is not required as 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. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. 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). The Board remanded this case in February 2008, in pertinent part, in order to obtain the Veteran's Social Security Administration (SSA) records. These were obtained and associated with the claims file. In December 2010, the case was again remanded in order to provide the Veteran with a VA examination to determine whether she had a diagnosis of thoracic outlet syndrome and to determine the current nature and severity of her service-connected right carpal tunnel syndrome. The required examination was provided in August 2011, with an addendum in October 2011. The Board finds that the VA examination report, including the information set forth in the addendum, is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with respect to the issues decided herein. Higher Rating-Carpal Tunnel Syndrome Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected carpal tunnel syndrome has been rated under Diagnostic Code 8515, at a 10 percent disability rating, for the right (major) hand. Diagnostic Code 8515 relates to impairment 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. 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. 38 C.F.R. § 4.124a, Diagnostic Code 8515. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, 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 to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, 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). The Veteran has contended that her service-connected right carpal tunnel syndrome warrants a higher disability rating. She has contended that she has pain and numbness in her right wrist, and that she has received injections in her wrist through VA, but that these only provide temporary relief from the pain. A September 2003 VA neurological examination shows that the Veteran reported numbness and pain in her right hand, which was constant but worse at night. Upon examination, she had some decreased pinprick sensations in the hands, more on the ulnar side. Vibration and position sense were intact. Her Tinel's sign was positive. The impression was numbness in the hands, suggesting carpal tunnel syndrome. A February 2005 electromyography study (EMG) revealed a mildly abnormal nerve conduction study, documenting right carpal tunnel syndrome, but no significant distal motor or sensory neuropathy or proximal conduction delay. A December 2009 VA general medical examination shows that the Veteran reported constant, dull, aching pain that started in her wrist and moved to the hands and forearms. She denied stiffness, swelling, locking, giving way and instability. She had flare-ups of pain four to five times per month, especially at night. During flare-ups, the intensity of the pain increased to 7 to 8 and lasted for four days. Upon examination, there was no swelling, tenderness or redness. Range of motion of the wrist was normal, with no pain on motion. Tinel's and Phalen's signs were negative. She had no atrophy or contracture in the right upper extremity, and had good strength in her hand with pushing, pulling and resisting. Sensation was intact. An August 2011 VA examination for neurological disorders reflected that the Veteran reported numbness and tingling in her hands with certain activities during the day, and underwent carpal tunnel release in 2010. She still had symptoms requiring the use of a wrist brace at night, and had occasional symptoms in digits four and five that lasted for 10 to 15 minutes. The examiner opined that, based on the history and examination, the Veteran did not have weakness or deficit referable to her carpal tunnel syndrome. In order to receive a higher disability rating, the evidence would need to reflect that the Veteran's service-connected carpal tunnel syndrome was moderate. The Board finds that, based on the evidence of record, the Veteran's service-connected right carpal tunnel syndrome does not warrant a higher disability rating. The evidence reflects that while the Veteran endorsed pain and numbness, vibration and position sense were intact. Her February 2005 EMG revealed only a mild defect. Range of motion of the wrist was normal without pain and she had good strength and coordination. In April 2011, the Veteran reported symptoms requiring the use of a brace at night; however, at this time, there was no weakness or deficit related to her service-connected carpal tunnel syndrome. As such, the Board finds that the disability picture presented by the Veteran's right carpal tunnel syndrome is mild, and does not more nearly approximate the criteria for a higher rating. 38 C.F.R. § 4.7. The Board has considered other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. at 595. However, there are no other Diagnostic Code pertaining to the Veteran's symptoms that offer a higher disability rating for the symptoms described in the record. As the preponderance of evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. 38 U.S.C.A. § 5107. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. 38 C.F.R. § 3.321. The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The symptoms associated with the Veteran's right carpal tunnel syndrome are contemplated by the rating criteria set out in Diagnostic Code 8515. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Thus, the evidence does not support referring this case for consideration of an extraschedular evaluation. Separate Rating for Thoracic Outlet Syndrome The Veteran contends that she should have a separate disability rating for thoracic outlet syndrome. In a June 2010 statement, she contended that her diagnosis was not provided on the basis of nerve conduction studies, but by a flight surgeon on physical examination. She additionally asserted that, when she was diagnosed with carpal tunnel syndrome, "a rater at the VA Regional Office simply decided that thoracic outlet syndrome was the same as carpal tunnel syndrome" and dismissed her separate rating for thoracic outlet syndrome. She argues that they are two separate, distinct diagnoses and that she does, in fact, have both. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not 'duplicative of or overlapping with the symptomatology' of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). The Veteran filed a claim for entitlement to service connection for carpal tunnel syndrome in December 1995, and was granted entitlement to service connection for thoracic outlet syndrome in a June 1995 rating decision, under Diagnostic Code 7114, by analogy. 38 C.F.R. § 4.27 (2013). The 20 percent disability rating was based upon the symptoms of loss of sensation and tingling in the hands when her head was turned and the arm was raised over head. The examiner stated that the diagnosis was thoracic outlet syndrome as there was no evidence of carpal tunnel syndrome. Rating decisions in April 1997 and July 1998 continued the 20 percent disability rating, based on examinations and the Veteran's reports of symptoms of numbness and tingling in her hands. She also reported using a wrist brace. At a September 2003 VA examination, the Veteran reported symptoms of numbness and pain and that she used wrist braces. At that time, the Veteran had numbness in the hands, suggestive of carpal tunnel syndrome and positive Tinel's sign. Based on this examination, the RO rated these same symptoms under Diagnostic Code 8515, for carpal tunnel syndrome on the right and left, and provided two separate 10 percent disability ratings. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board notes that there is some conflicting evidence as to whether the Veteran has a diagnosis of thoracic outlet syndrome. An October 2010 VA medical record reflects that examination was positive for thoracic outlet syndrome on the right. The diagnostic impression of bilateral carpal tunnel syndrome, worse on the right, and thoracic outlet syndrome on the right. Nevertheless, an August 2011 VA neurological examination report shows that the Veteran stated that she thought she still had thoracic outlet syndrome because she has occasional "knots" in the muscles of the posterior neck, numbness in the dorsal shoulder and some neck problems. The examiner opined that the Veteran's records indicated that she had been diagnosed with right thoracic outlet syndrome in the past, but that she did not have any findings consistent with thoracic outlet syndrome at the time of the examination. In an addendum provided in October 2011, the examiner stated that there was no evidence or examination finding consistent with thoracic outlet syndrome, and it was her opinion that the Veteran did not have thoracic outlet syndrome. The Board has considered the Veteran's contentions, but finds that a separate disability rating for thoracic outlet syndrome is not allowed by VA regulations. Even if the evidence was clear that the Veteran had thoracic outlet syndrome, the symptoms that have been associated with her thoracic outlet syndrome and upon which she had been rated-from 1994 to 2003-have consistently included numbness and pain in her hands. These symptoms are now rated under the Diagnostic Code pertaining to carpal tunnel syndrome and do not contemplate or cause disability other than the very problems on which the 10 percent ratings for carpal tunnel syndrome have been assigned. To provide an additional disability rating for thoracic outlet syndrome would constitute pyramiding, and is not allowed. ORDER An initial disability rating in excess of 10 percent for right carpal tunnel syndrome is denied. A separate rating for thoracic outlet syndrome is denied. REMAND In a statement submitted with her October 2012 Form 9, the Veteran contended that her service-connected fibromyalgia warrants a 40 percent disability rating based on the fact that she is in constant pain that is refractory to therapy. In this statement, she stated that, in the prior months, she had been placed on Neurontin to treat her pain. The most recent VA treatment records are from June 2010, and there are no medical records in the online Virtual VA claims file. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, current treatment records should be obtained and associated with the record. The most recent examination provided to the Veteran to assess her service-connected fibromyalgia was conducted in September 2003. The Veteran has indicated that, since that time, she has lost several jobs due to the severity of her pain. As this raises the possibility that the Veteran's service-connected fibromyalgia has worsened since her last examination, the Board finds that she should be provided with a VA examination to determine the current severity of her fibromyalgia. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment related to the Veteran's fibromyalgia from the VA since June 2008. (The Veteran should be contacted and asked to identify all sources of treatment and/or evaluation.) If a private care giver is identified, consent to obtain records should be sought. 2. Thereafter, the Veteran should be afforded a VA fibromyalgia examination to determine the current severity of this disability. All indicated tests and studies should be conducted. The claims folder should be made available to the examiner for review before the examination. The examination report must specifically address the rating criteria necessary to evaluate service-connected fibromyalgia. Specifically, the examiner should state whether or not the Veteran's symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present for more than one-third of the time, or if the symptoms are constant or nearly so, and refractory to therapy. It should be noted whether there are widespread musculoskeletal pain and tender points. 3. After the development requested above has been completed, review the record. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs