Citation Nr: 1332104 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-05 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent disabling for right hand tendonopathy with carpal tunnel. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from July 1998 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for tendonopathy of the right hand with a noncompensable evaluation. In an April 2010 rating decision, the RO granted an increased evaluation of 10 percent for right hand tendonopathy, effective April 2, 2008, the day following his discharge from service. The Court has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue remains before the Board. The appellant was scheduled for a Travel Board hearing before a Veterans Law Judge in May 2013. However, he failed to report for the hearing. Thus, his hearing request is deemed to be withdrawn. FINDINGS OF FACT 1. The appellant's right hand tendonopathy with carpal tunnel is manifested by pain, an inability to make a complete fist, limitation of motion of the right index finger, and no ankylosis. 2. From March 31, 2009, the appellant's right hand carpal tunnel syndrome is manifested by numbness in the fingertips, decreased sensation and mild incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for right hand tendonopathy with carpal tunnel are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5399-5309 (2013). 2. From March 31, 2009, the criteria for a separate initial evaluation of 10 percent for right hand carpal tunnel syndrome are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Here the appellant is appealing the initial rating assignment as to his tendonopathy of the right hand. In this regard, because the April 2009 rating decision granted the appellant's claim of entitlement to service connection, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the appellant's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2013). As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the appellant with appropriate VA examinations in April 2008, March 2009, and April 2012. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board notes that in the April 2013 Informal Hearing Presentation, the appellant's representative stated that the April 2012 VA examination was inadequate because the examiner did not specifically address whether the condition was slight, moderate, moderately severe or severe. Diagnostic Code 5309 provides that the hand is so compact a structure that it should be rated on limitation of motion. As the April 2012 VA examination report provided range of motion findings, the Board finds that it is adequate to rate the appellant's service-connected disability. The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. The Board notes that in an April 2013 Informal Hearing Presentation, the appellant's representative stated that the request for arguments was made in conjunction with establishment of the date for a local hearing with a Veterans Law Judge which did not allow for or anticipate the need to consider or respond to assertions made herein pertaining to applicable case law. As the appellant did not report for the hearing and the appellant's representative had the opportunity to review the claims file and submit argument, the Board finds that there is no harm to the appellant in proceeding to adjudicate the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. Id. § 4.3. An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The appellant's service-connected right hand tendonopathy is currently evaluated under Diagnostic Code 5399-5309. The appellant is right-handed, so this disability is on his major side. Muscle Group IX involves the intrinsic muscles of the hand, including the thenar eminence, the short flexor, opponens, abductor, and adductor of the thumb, hypothenar eminence, the short flexor, opponens, and abductor of the little finger, 4 lumbricales, and 4 dorsal and 3 palmar interossei. Muscle Group IX functions to supplement the strong grasping movements of the forearm muscles with delicate manipulative movements. 38 C.F.R. § 4.73, Diagnostic Code 5309. Because the hand is so compact a structure, isolated muscle injuries are rare, and these injuries are rated based on limitation of motion, with a minimum rating of 10 percent. 38 C.F.R. § 4.73, Diagnostic Code 5309, Note. The appellant is receiving the minimum 10 percent rating. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2013). III. Analysis The appellant contends that he is entitled to an evaluation in excess of 10 percent for right hand tendonopathy. For the reasons that follow, the Board finds that a higher rating is not warranted for limitation of motion of the hand. However, the Board finds that a separate rating of 10 percent is warranted for symptoms of numbness due to carpal tunnel syndrome. The appellant's VA treatment records and private treatment records reflect that he reported having pain in his hands, including with use. See e.g. July 2009 private treatment record, September 2009 and March 2010 VA treatment records. The April 2008 VA examination report reflects that the appellant reported that he had pain in the right wrist and right hand that was aggravated with cold weather and with heavy activity. Feeling in the hand was normal. He did not drop object, but he described tenderness of his fingers. The range of motion of the right thumb, middle finger, ring finger and little finger were normal. The right index finger range of motion was 50 degrees of the metacarpophalangeal joint, 90 degrees of the proximal IP joint and 45 degrees of the distal interphalangeal (IP) joint. He was unable to make a fist. The right index finger did not approximate the palm of the hand by 2 centimeters. He did not use a brace. The function of the right index finger was reduced. The grip of the right hand was reduced by 10 percent. There was no pain on range of motion of the index finger, but there was limitation of motion with passive and active range of motion including moving against gravity and against strong resistance. There was no additional limitation with repetitive movement 3 times and no additional limitation with flare up as this was not described. Sensation to pinprick and vibratory stimulation to the right hand were normal. The range of motion of the right wrist and elbow were normal. The impression was chronic right wrist sprain of moderate disability. The anatomical defects were in the right hand. It did not affect grasping, pushing, pulling, twisting, probing, writing, touching or expression. The effect on employment was that the appellant's job as a mechanic aggravated his symptoms with his right hand and right index finger. The appellant was afforded another VA examination in March 2009. The examination report reflects that the appellant reported swelling in his right hand to the point where he could not make a fist. He noticed that when he attempted to pick up heavy objects his hands at times would feel weak and he had pain in his knuckles. The pain did not radiate and was localized to the metacarpophalangeal (MCP) joints of all fingers in the bilateral hands. He did not use any braces or supports for his hands. He had no flare-ups that incapacitated him, but he did note that when his pain increased, he would have to take a break of approximately 5 to 10 minutes. On examination, grip strength was 3 out of 4 on the right. There was swelling of the hand from the wrist to all finger tips, palmar and dorsal surface. There was no thenar atrophy. Range of motion in all fingers was full with MCP range of motion of 0 to 90 degrees without pain, range of motion all proximal interphalangeal (PIPS) joints was 0 to 110 degrees without pain. Range of motion of all distal interphalangeal (DIP) joints was 0 to 80 degrees without pain. He was able to oppose all fingers to the thumb bilaterally. Pincher grip was equal and strong bilaterally in all fingers. He was able to flex his fingers to the distal palmar crease without difficulty, but he could not flex to the proximal palmar crease. He could not make a completely closed fist. There were negative Tinel's, Phalen's and Finkelstein's tests. There was audible popping of the MCPs during the examination. There was no increased pain, weakness, fatigue, loss of coordination, or endurance on repetitive motion testing. The assessment was bilateral hand tendonopathy with chronic swelling. An October 2009 VA treatment record noted that the appellant complained of pain in his bilateral dorsal knuckles of his hands. He was taking ibuprofen with moderate results. He was previously given a steroid dose pack with fair results. He stated that he had mild numbness in all of his fingertips. He denied any weakness in his hands. In a February 2010 substantive appeal, the appellant stated that he had pain and lack of strength in his right hand, in addition to not being able to make a fist. He also stated that the right hand disability had worsened. A May 2010 VA treatment record noted that the appellant was referred recently for complaints of hand arthralgias and swelling for seven to eight years. He complained of hand stiffness that had improved recently. On examination, his hands had no synovitis or tenderness of PIP joints, MCP joints, or wrists. The physician noted he was "not very symptomatic today." A September 2011 VA treatment record noted that the appellant continued to have pain in all the small joints of his hands, especially when he used them (such as when he used a hammer). An April 2012 VA examination report notes that the appellant did not report flare-ups that impact the function of the hand. On the right hand, there was limitation of motion or evidence of painful motion in all the fingers. There was not a gap between the thumb pad and the fingers. Painful motion began at a gap of 1 inch or more of the index finger, long finger, ring finger and little finger in attempting to touch the palm with the fingertips. There was no limitation of extension or evidence of painful motion for the index finger or long finger. The appellant was able to perform repetitive-use testing with 3 repetitions. There was no additional limitation of motion for any fingers post-test. There was not a gap between the thumb pad and the fingers post-test. There was not a gap between any fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips or limitation of extension for the index finger or long finger post-test. The appellant had excess fatigability in all fingers of the right hand and pain on movement. Muscle strength was 5/5 in a right hand grip. The appellant did not have ankylosis of the thumbs or fingers. The appellant did not have any scars related to any conditions. The appellant did not use any assistive devices. An October 2012 VA examination report noted that an October 2012 X-ray of the hands showed no significant radiographic abnormalities. The VA examiner found that the appellant had no physical evidence of inflammatory arthritis or synovitis. An October 2012 VA treatment record indicated that the appellant reported that his hands would swell up and become painful after yardwork. On examination, there was no synovitis. There was tenderness on the right fourth MCP joint. As noted above, under Diagnostic Code 5309, muscle injuries to the hands are rated on limitation of motion with a minimum 10 percent rating. The Board finds that the appellant's right hand tendonopathy does not meet the criteria for a rating in excess of 10 percent. Under Diagnostic Code 5228, limitation of motion of the thumb with a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers warrants a 20 percent rating. The April 2008 VA examination report indicated that the appellant could not make a fist and the right index finger did not approximate the palm of the hand by 2 centimeters. At the March 2009 VA examination, the appellant was able to oppose all fingers to the thumb bilaterally. However, he could not flex to the proximal palmar crease and he could not make a completely closed fist. At the April 2012 VA examination, there was not a gap between the thumb pad and the fingers. The Board finds that the evidence demonstrates that the appellant is entitled to a 10 percent rating under Diagnostic Code 5229, for limitation of motion of the index or long finger with a gap or more inch or more between the fingertip and proximal transverse crease of the palm. However, the evidence does not support a finding that the appellant is entitled to a 20 percent rating under Diagnostic Code 5228. In the absence of evidence of limitation of motion of the thumb with a gap of more than two inches between the thumb pad and fingers, a higher rating is not warranted under Diagnostic Code 5228. The Board has considered whether the appellant is entitled to a higher rating under another Diagnostic Code. Diagnostic Codes 5229 and 5230 for limitation of motion of the index or longer finger or ring or little finger, respectively, do not provide for a rating in excess of 10 percent. Additionally, there was no evidence of ankylosis in any of the fingers or hand. The April 2012 VA examination specifically noted the appellant did not have ankylosis of the thumbs or fingers. Thus, a higher rating is not warranted under Diagnostic Codes 5214 through Diagnostic Code 5227 for ankylosis. Diagnostic Code 5307 provides the rating criteria for Group VII muscles, flexion of the wrist and fingers, muscles arising from internal condyle of humerus: flexors of the carpus and long flexors of fingers and thumb; pronator. Moderate symptoms warrant a 10 percent rating, moderately severe symptoms warrant a 30 percent rating for the dominant had, and severe symptoms warrant a 40 percent rating. Diagnostic Code 5308 provides the diagnostic criteria for Group VIII muscles, function: extension of the wrist, fingers and thumb; abduction of thumb, muscles arising mainly from external condyle of humerus: extensors of carpus, fingers, and thumb; supinator. Moderate symptoms warrant a 10 percent rating, moderately severe symptoms warrant a 20 percent rating and sever symptoms warrant a 30 percent rating. Although the disability is rated under Diagnostic Code 5309, for muscle Group IX, even if Diagnostic Codes 5307 and 5308 applied, the Board finds that the symptoms are no more than moderate. The VA examination reports indicate the appellant generally had a normal range of motion in his fingers, with some limitation of right index finger motion and an inability to make a fist. In addition, loss of use of a hand for special compensation purposes is not warranted as there is evidence that effective hand function remains. 38 C.F.R. §§ 4.63 (2013). The appellant has also reported having numbness in his right hand. The October 2009 VA treatment record noted that the appellant reported numbness in all his fingertips. The April 2012 VA examination report noted that the appellant had bilateral hand numbness and tingling every day and that he had been diagnosed with bilateral carpal tunnel syndrome. In a December 2012 rating decision, the RO granted entitlement to service connection for right hand tendonopathy (dominant) with carpal tunnel. The April 2012 VA examination report indicated that the appellant had carpel tunnel syndrome, a peripheral nerve condition. Thus, the Board must address whether the appellant is entitled to a higher or separate rating based on his symptoms of numbness. As the appellant's symptoms of numbness in the fingers are separate from his symptoms of limitation of motion of the right hand, the Board finds that a separate rating is warranted for the appellant's symptoms of numbness due to carpal tunnel syndrome. In the April 2012 VA examination, the VA examiner specifically found that carpal tunnel syndrome was at least as likely as not due to or the result of the appellant's service-connected right hand condition. The VA examiner stated that it was his opinion that the bilateral carpal tunnel syndrome of the hands was due to the chronic tendonopathy of the right hand and the bilateral hand rheumatoid arthropathy. The April 2008 VA examination report noted that the feeling in the appellant's hand was normal. On examination, sensation to pinprick and vibratory stimulation to the right hand was normal. Tendon reflexes and sensation were normal. The March 2009 VA examination report indicated that the appellant would wake up with numbness on occasion in both hands, with the right seeming to be worse than the left. The October 2009 VA treatment record noted that the appellant reported mild numbness in all of his fingertips. He denied any weakness in his hands. The April 2012 VA examination reflects that the appellant had mild intermittent pain due to his peripheral nerve condition, and moderate parethesias and/or dystehsias and numbness in the right upper extremity. Muscle strength was 5/5 in the right hand grip and pinch tests. The appellant did not have muscle atrophy. The appellant had decreased sensation testing for light touch in the right hand. The appellant's radial nerve was normal. He had mild incomplete paralysis of the median nerve of the right hand. The examiner found that the appellant had functional limitations due to the bilateral carpal tunnel impairment. He could type/write with his right hand for 10 minutes and lift and carry packages for 10 minutes at a time before needing to rest. Based on the evidence finding that the appellant has numbness due to carpal tunnel syndrome, the Board finds that a separate rating of 10 percent is warranted for mild incomplete paralysis of the median nerve under Diagnostic Code 8515. The April 2012 VA examination report specifically noted that the appellant had mild incomplete paralysis and the symptoms described by the appellant during the period on appeal are consistent with mild numbness. The Board finds that a separate rating of 10 percent is warranted for carpal tunnel from March 31, 2009, the date of the VA examination at which the appellant first reported having numbness in his hands. The Board has considered whether the appellant is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59 and holdings in DeLuca. The evidence reflects that the appellant consistently reported pain on use of the hand. However, the April 2008, March 2009, and April 2012 VA examination reports did not indicate that the appellant was able to perform repetitive use testing and there was no additional limitation of motion following repetitive use. The April 2012 VA examination report did note that the appellant had excess fatigability in all fingers of the right hand and pain on movement. However, the evidence does not indicate that the excess fatigability is equivalent to the limitation of motion required for a rating in excess of 10 percent for his service-connected disability. The evidence does not show that the thumb was limited to a gap of more than two inches between the thumb and fingers following repetitive use testing or that the appellant had limitation of motion equivalent to ankylosis. The Board finds that the appellant's pain on motion of his hands, including his inability to make a fist and reduced right hand grip, are contemplated by assigned ratings. The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right hand tendonopathy is inadequate. A comparison between the level of severity and symptomatology of the appellant's right hand tendonopathy with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. Further, the appellant has not alleged that the schedular evaluation is inadequate. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, 22 Vet.App. at 115. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. In a January 2012 statement, the appellant stated that "I have not been able to maintain suitable employment because of the pain and swelling caused by physical work." In May 2012 the RO requested clarification from the appellant. A May 2012 report of contact indicates that the appellant stated that he did not intend to submit a claim for TDIU at that time. He was issued medications and he wanted to see if they would help first. Since that statement, the appellant has not indicated that he is unemployed due to a service-connected disability. Thus, the Board finds that the issue of entitlement to a TDIU has not been raised by the record. ORDER Entitlement to an initial evaluation in excess of 10 percent disabling for right hand tendonopathy, is denied. Entitlement to a separate initial evaluation of 10 percent for right hand carpal tunnel syndrome is granted, from March 31, 2009. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs