Citation Nr: 1332045 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-34 092A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, prior to March 27, 2007. 2. Entitlement to an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, from May 1, 2007, to July 19, 2012. 3. Entitlement to an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, from July 19, 2012, to April 26, 2013. 4. Entitlement to an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, from July 1, 2013 to the present. 5. Entitlement to a finding of total disability based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1973 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2007 and May 2010 rating decisions by the Indianapolis, Indiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The June 2007 decision denied entitlement to an increased evaluation for the right wrist. Entitlement to TDIU was denied in May 2010. Throughout the pendency of these appeals, the Veteran has at several points indicated his desire for Board or local hearings in various forms. Most recently, however, the Veteran stated to RO personnel that he did not want any hearing at all. His options were explained to him in a November 2012 phone call, and he plainly stated that he desired his appeals to be certified to the Board as soon as possible. His hearing requests are therefore considered withdrawn. In April 2013, the Board denied entitlement to service connection for a number of disabilities, as well as eligibility for payment of a nonservice-connected pension. No further question remains for consideration by the Board with regard to those issues. The Board additionally remanded the issues of evaluation of the right wrist disability and entitlement to TDIU to the RO via the Appeals Management Center (AMC), in Washington, DC, in April 2013. During the processing of the remand, the AMC in August 2013 granted entitlement to a temporary total evaluation for the right wrist based on a need for convalescence following surgery, from April 26, 2103, to July 1, 2013. 38 C.F.R. § 4.30 (Paragraph 30). The Veteran has not disagreed with any aspect of this award, nor has he disputed an earlier such award from March 27, 2007, to May 1, 2007. As the award of a 100 percent evaluation represents a grant of the highest possible evaluation for the service-connected right wrist disability, the Paragraph 30 awards are a full grant of the benefit sought for those periods, and no further question remains for appellate review by the Board. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue has been recharacterized to reflect those periods currently rated less than total, which do remain on appeal. The newly identified stages listed above are in accordance with the facts of the case. The Board would additionally note that the Veteran is not service-connected for his polyarthralgias and arthritis; these conditions, which do affect the right wrist, are not considered here. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The issues of entitlement to an evaluation in excess of 30 percent for the right wrist since July 1, 2013, and entitlement to TDIU are addressed in the REMAND portion of the decision below and [is/are] REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 27, 2007, residuals of right wrist ganglion cyst removal were manifested by no worse than mild impairment of the right hand, with sensory and grip strength reduction following recurrence of the cyst. 2. From May 1, 2007, to July 19, 2012, residuals of right wrist ganglion cyst removal were manifested by no worse than mild to moderate impairment of the right hand, with sensory and grip strength reduction, and reports of occasional shooting pains in the right hand. 3. From July 19, 2012, to April 26, 2013, residuals of right wrist ganglion cyst removal were manifested by severe neuropathy, to include related symptoms of carpal tunnel syndrome (CTS). CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, prior to March 27, 2007, are not met. 38 U.S.C.A. §§ 1155, 5107 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.142a, Diagnostic Code 8514 (2013). 2. The criteria for an evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, from May 1, 2007, to July 19, 2012, are not met. 38 U.S.C.A. §§ 1155, 5107 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.142a, Diagnostic Code 8514 (2013). 3. The criteria for an increased evaluation of 50 percent, but no higher, for residuals of right wrist ganglion cyst removal, from July 19, 2012, to April 26, 2013, are met. 38 U.S.C.A. §§ 1155, 5107 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.142a, Diagnostic Code 8514 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. April 2007, February 2009, July 2010, and November 2011 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Reasonable efforts to secure all identified relevant records were undertaken, and the Veteran was fully informed of unsuccessful efforts. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted periodically over the course of the appeal; the Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners made all necessary clinical findings to permit application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are assigned here in light of entitlement to Paragraph 30 benefits (temporary total evaluations based on periods of convalescence) at various times, and as is discussed below, further staging is warranted. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently evaluated as 30 percent disabled by the neurological manifestations of his right wrist disability under Code 8514, for moderate impairment of the radial nerve. The initial compensable evaluation, assigned in a May 1997 rating decision, was done based on clinical observations of a radial nerve distribution. No objective testing appears to have been performed. Current testing shows that it is in fact the median nerve which is impacted; affected functions are very similar in the compact structure of the hand. Nevertheless, no change in the applied Diagnostic Code (to 8515) is warranted. The evaluation levels involved are the same, the disability pictures considered are substantially similar, and given the recurrent and developing nature of the Veteran's cysts, continued analogous evaluation is appropriate. Under applied Code 8514, severe impairment is rated 50 percent disabling, and total impairment, or complete paralysis, is rated 100 percent. These ratings reflect those assignable for impairment of the dominant, or major, hand; the Veteran is shown to be right handed. Complete paralysis of the radial nerve is considered marked by drop of the hand and fingers, the wrist and fingers being perpetually flexed, and the thumb adducted and falling within the line of the outer border of the index finger. An affected Veteran cannot extend his hand at the wrist, extend the proximal phalanges of the fingers, extend his thumb, or make lateral movement of the wrist; supination of the hand, and extension and flexion of elbow are weakened. The associated loss of the synergic motion of the extensors impairs the hand grip seriously; total paralysis of the triceps occurs only rarely. 38 C.F.R. § 4.124a, Code 8514. Prior to March 27, 2007 The Veteran's claim for increased evaluation was received by VA via telephone on January 29, 2007. 38 C.F.R. § 3.155. However, a review of VA treatment records shows that the Veteran had reported recurrence of his ganglion cyst on November 21, 2006, and complained of increased symptoms several times in December 2006. The November 2006 treatment report constitutes a claim for increased evaluation in this case, 38 C.F.R. § 3.157, and hence entitlement to an increased evaluation prior to the date on which Paragraph 30 benefits began is required. The appropriate effective date for an award of increase is potentially the date of receipt of the claim; this could also be the date on which entitlement to increased rating actually occurred. 38 C.F.R. § 3.400(o). In any event, as an effective date prior to the start of the temporary total evaluation is possible, the evaluation within the appellate period prior to Paragraph 30 entitlement must be considered. VA treatment records for that period reveal that the Veteran first raised active complaints regarding his wrist in November 21, 2006, when he sought treatment for a recurrence of a ganglion cyst. Examiners reported that the Veteran experienced decreased sensation and reduced grip strength in the right hand. EMG testing in February 2007 noted mild impairment. Surgery was performed the following month to remove the recurrent cyst. The disability picture presented prior to March 27, 2007, does not reflect entitlement to an evaluation in excess of 30 percent. While a recurrence of the service-connected ganglion cyst did occur, and symptoms did increase to the point where surgery was required, objective testing, clinical observation, and the competent and credible lay statements of the Veteran describe no greater than a mild functional impairment. The notations of decreased sensation and reduced grip strength do not establish the level of "severe" impairment required for assignment of an evaluation in excess of 30 percent. May 1, 2007, to July 19, 2012 Following the Veteran's March 2007 surgery, he was awarded a temporary total evaluation for convalescence under 38 C.F.R. § 4.30. The Paragraph 30 benefits terminated on May 1, 2007, at which time the 30 percent evaluation was resumed. At a May 2007 VA examination, the Veteran reported that due to the ganglion cyst and related surgery, he had a history of decreased sensation along the thumb and index finger. He described his recent surgery, to include carpal tunnel release, and stated he had recovered some sensation proximally, but the numbness was fairly unchanged. On examination, there was decreased sensation in the superficial radial nerve; motor function was good in the radial, ulnar, and medial nerves. At a November 2007 VA examination, dysthesia in the thumb and index finger was noted. The Veteran reported "shooting pains" down the thumb, as well as numbness and swelling. He had difficulty gripping a pen or pencil to write. Muscles were not atrophied, but he was 3/5 weakness in the fingers. Gripping was difficult. Sensation was objectively reduced. VA treatment records from August 2007 to April 2011 reveal complaints of soreness and pain around the sites of excision of various cysts, both mucosal and ganglion. Testing showed some mild weakness of the right hand in April 2008; the Veteran complained of sharp shooting pains and right hand numbness. He stated he kept dropping things. An April 2008 EMG study showed mild chronic abnormalities of the median and ulnar nerves of the right hand. A wrist splint was recommended in June 2008. From then through 2009, the Veteran denied neurological problems of the right hand and wrist; he did make complaints through 2010 of orthopedic pain, related to his systemic arthritis problems, but specifically denied symptoms like numbness. In February 2011, he indicated he was doing pretty well except for some non-hand related problems. Several lay statements from friends in February 2009 report that the Veteran had difficulty grasping and holding objects, and would drop things like cups. A pension examination in April 2010 included the finding that the left and right hands were equally weakened, to 4/5. The examiner did state, however, that the Veteran's ability to lift more than 20 pounds with the right hand was restricted. A focused July 2010 VA examination reported complaints of persistent numbness and tingling in the right hand. Objective testing showed full 5/5 strength in the right hand, but there was reduced sensation to the thumb, index, and middle digits. While the Veteran reported occasion radiating pain from the site of the ganglion removal, no functional limitations of the hand were noted. At an August 2010 VA general medical examination, the examiner noted strength was only 4+/5 in the right hand. At a December 2011 VA examination, the Veteran described his history of surgeries for cysts of the right wrist. The examiner, following review of the claims file, stated that right wrist orthopedic problems were "clearly" not related to previous surgeries. On physical examination, motor function was normal, but mildly decreased sensation involving the radial nerve was noted. Strength and dexterity were normal. VA treatment records through July 2012 reveal no complaints related to ongoing right hand and wrist problems; the Veteran generally denied problems other than those he specifically sought treatment for, such as a rash or vision problems. The disability picture presented from May 1, 2007, to July 19, 2012, does not warrant assignment of a disability evaluation in excess of 30 percent. Although when compared to the pre-March 2007 period, the Veteran does report, and medical records document, a greater degree of functional impairment, such as with gripping objects or dropping cups, the described level of impairment does not rise to the "severe" level required for assignment of a higher, 50 percent evaluation under Code 8514. The established sensory problems are noted to be mild; the muscular weakness, which is observed to have varied to a slight degree over time, did not ever rise above a moderate (3/5) level, and for the large majority of the period was 4/5 or better. Finally, examining and treating doctors repeatedly noted the lack of motor impairment of the right hand. No increased evaluation is warranted for this period. July 19, 2012, to April 26, 2013 In contrast, VA treatment records dated July 19, 2012, mark a definite increase in the severity of the Veteran's service-connected right hand and wrist disability as a result of recurrent ganglion cysts. On that date, the Veteran reported that increased symptoms were causing him greater pain and problems; he had a burning sensation in the hand. While the consulting doctor noted the presence of some nodes and cysts unrelated to the service-connected ganglion cysts, he also diagnosed a recurrence of the right carpal tunnel syndrome, which has been related to the repeated surgeries for the service-connected disability by a July 2013 VA examiner. Medication was prescribed, but due to side effects of edema in the limbs, was discontinued. A new medication was issued, which was helpful. The doctor recommended follow up and reassessment. The Board notes that the July 19 consultation was the result of a July 2 intake examination, when the Veteran apparently enrolled for primary care with VA. However, the records of that date include no information regarding the severity of the right wrist condition. A VA examination was conducted in September 2012. The examiner reviewed the claims file and noted the Veteran's surgical history on the right hand, including the 2007 surgeries. The Veteran complained of paresthesia and a burning sensation on the right. A nerve conduction test was pending. The Veteran reported pain and stiffness of 5-9/10, especially in the mornings and with use of the hand. Numbness and tingling were in a glove distribution, and he stated grip strength was reduced, as well as endurance. He tended to drop things and manipulating small objects could be difficult. He continued to use medication, but no splint. The examiner characterized the functional limitations as mild to moderate. The EMG results mentioned by the examiner were reported in November 2012. These showed severe CTS on the right. The median nerve was affected. Surgery was recommended for correction. Effective July 19, 2012, the evidence of record demonstrates factual entitlement to an increased, 50 percent evaluation for the residuals of a right wrist ganglion cyst. The Veteran subjectively reported increased symptoms on that date, greater than had previously been associated with recurrence of the cyst; this may have been due to the presence of CTS, but a July 2013 VA examiner specified that the history of ganglion cysts and treatment for them would likely have caused the CTS problems. The symptoms are therefore considered as a unit. Subsequent objective evaluations showed independently that the Veteran's complaints had an organic basis. Although the September 2012 VA examiner described the functional impairment as no more than moderate, the EMG evidence of severe neuropathy, combined with the Veteran's competent reports of the increases he experienced warrant assignment of the next higher, 50 percent evaluation. Entitlement to the highest, 100 percent schedular evaluation is not shown, as that is reserved for complete paralysis of the affected nerves. Here, the Veteran retains some degree of function of his right hand, and the pain he experiences is not sufficient to prevent its use. Thus, the maximum rating is not warranted. Extraschedular Evaluation For each stage of evaluation addressed here, consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are adequate in this case. The criteria fully consider the symptoms of numbness, tingling, and pain described by the Veteran, as well as the inherent weakness from neurological problems. The Code applied addresses specifically the functions he reports impacted by the disability, including grasping and manipulation. Further, they allow for higher evaluations than are currently assigned for greater levels of impairment, which are simply not shown. As the Schedule is adequate, no further discussion of 38 C.F.R. § 3.321 is necessary. (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, prior to March 27, 2007, is denied. An evaluation in excess of 30 percent for residuals of right wrist ganglion cyst removal, from May 1, 2007, to July 19, 2012, is denied. An increased evaluation of 50 percent, but no higher, for residuals of right wrist ganglion cyst removal, from July 19, 2012, to April 26, 2013, is granted, subject to regulations applicable to the payment of monetary benefits. REMAND With regard to the evaluation stage since July 1, 2013, and the claim of entitlement to TDIU, remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Right Wrist The Veteran was granted a temporary total evaluation under Paragraph 30 in an August 15, 2003, rating decision. The listed evidence includes "Treatment records, St. Louis, MO, VA Medical Center, dated June 2012 through July 2013." Review of those records in the electronic Virtual VA system reveals that no actual physical assessment of the Veteran was done after June 11, 2013, and that was for his right elbow, not the wrist. The wrist was evaluated May 28, 2013, when the Veteran reported that feeling was back. The July 2013 medical opinion of record was based on a review of the claims file, not examination of the Veteran. Therefore, no comprehensive evaluation of the current post-service residuals of the most recent CTS and ganglion cyst surgeries has been conducted. The evidence of record is not sufficient for a determination of the current residuals, and remand is required to obtain such, particularly in light of the above increased evaluation awarded for the period immediately prior to the April 2013 surgery. TDIU A claim for entitlement to TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16. The question of TDIU entitlement is therefore inextricably intertwined with the open question of evaluation for the residuals of right wrist ganglion cyst removal. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Any adjudication of TDIU must consider the rating assigned for the right wrist. Adjudication of that issue must therefore be deferred. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from the Medical Center in St. Louis, Missouri, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period since July 2013. 2. Schedule the Veteran for an appropriate VA examination to determine the current manifestations and severity of his service-connected residuals of right wrist residuals. The claims file should be reviewed in conjunction with the examination. The examiner is asked to specifically comment on the impact of the service-connected disability on the Veteran's occupational functioning (i.e., ability to perform heavy or sedentary tasks, sit or stand for extended periods, type, write, etc.). The examiner should be informed that only neurological conditions have been service-connected at this time; orthopedic impairments have been associated with nonservice-connected conditions. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs