Citation Nr: 1616399 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 10-20 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. The propriety of a rating reduction from 50 to 30 percent for right carpal tunnel syndrome from August 1, 2008 through June 14, 2012. 2. The propriety of a rating reduction from 40 to 20 percent for left carpal tunnel syndrome from August 1, 2008 through June 14, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Ivey-Crickenberger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2016. The hearing transcript is associated with the record. At the hearing, the Veteran limited his appeal to the issues as listed on the title page. See Board Hearing Transcript (Tr.) at 2; see also Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (rating reductions claims are separate from increased ratings claims). FINDINGS OF FACT 1. In January 2008, the RO notified the Veteran of the proposed reduction in the rating of his right and left carpal tunnel syndrome. He was given opportunity to contest the reduction, including by having a hearing on the matters. 2. A subsequent May 2008 rating decision implemented the reduction in rating for right carpal tunnel syndrome from 50 to 30 percent, and for left carpal tunnel syndrome from 40 to 20 percent, effective August 1, 2008. 3. At the time of the reductions, the 50 percent rating for the right carpal tunnel syndrome and the 40 percent rating for the left carpal tunnel syndrome had been in effect for less than five years. 4. When the RO reduced the ratings for the Veteran's right and left carpal tunnel syndrome, there was no improvement in the disabilities. CONCLUSIONS OF LAW 1. The criteria for restoration of the 50 percent rating for right carpal tunnel syndrome from August 1, 2008 to June 14, 2012 are met. 38 U.S.C.A. §§ 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8515 (2015). 2. The criteria for restoration of the 40 percent rating for left carpal tunnel syndrome from August 1, 2008 to June 14, 2012 are met. 38 U.S.C.A. §§ 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8515 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks restoration of 50 and 40 percent ratings for right and left carpal tunnel syndrome from August 1, 2008 to June 14, 2012. The provisions of 38 C.F.R. § 3.105(e) allow for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Here, to this end, a January 2008 RO decision proposed to reduce the evaluation for the Veteran's service-connected carpal tunnel syndrome from the severe to the moderate level (from 50 to 30 percent for right carpal tunnel syndrome and from 40 to 20 percent for left carpal tunnel syndrome). A letter accompanying the decision duly informed him he had 60 days to submit evidence and request a hearing if he did not believe the reduction in rating was warranted. The Veteran requested a personal hearing in connection with the proposed rating reduction; the hearing was conducted in March 2008 and a transcript is associated with the record. In the subsequent May 2008 decision on appeal, the RO implemented the proposed reduction, effective as of August 1, 2008. The Board, therefore, finds that VA has complied with the procedural requirements of 38 C.F.R. § 3.105(e) in proposing and reducing the rating for these service-connected disabilities. The initial "severe" evaluations assigned for the Veteran's bilateral carpal tunnel syndrome were in effect from March 1, 2006 to August 1, 2008. Thus, as these ratings were in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions, do not apply. Instead, the provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years may be reduced upon a showing that the disability has improved. In Brown v. Brown, 5 Vet. App. 413 (1993), the U.S. Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those that have been in effect for less than five years. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § 4.2, establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a veteran's disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. After reviewing the relevant evidence, the Board finds that the reduction in rating was not warranted since the Veteran's disability had not shown the required improvement in orthopedic and neurologic symptoms. Under Code 38 C.F.R. § 4.124a, DC 8515 (for median nerve paralysis), a 10 percent rating is warranted for mild incomplete paralysis of the nerve. A 20 percent rating is warranted when there is moderate incomplete paralysis of the nerve of the non-dominant extremity; a 30 percent rating is warranted when there is moderate incomplete paralysis of the nerve of the dominant extremity. A 40 percent rating is warranted when there is severe incomplete paralysis of the nerve in the non-dominant extremity; a 50 percent rating is warranted when there is severe incomplete paralysis of the dominant extremity nerve. A 60 percent rating is warranted when there is complete paralysis of the non-dominant extremity nerve, and a 70 percent rating is warranted when there is complete paralysis of the dominant extremity nerve. 38 C.F.R. § 4.124a. The Veteran received a VA peripheral nerve examination July 2006, which documented the Veteran's medical history and tentatively diagnosed carpal tunnel syndrome of both hands, pending the results of a nerve conduction study. The examination revealed significantly reduced strength on the left side and also recounted intermittent episodes of pain and discomfort in the dominant right hand. Grip strength was measured at 80 pounds on the right side and 40 pounds on the left, with pain increasing upon each repetition. The Veteran received a nerve conduction study in November 2006. It showed carpal tunnel syndrome of the left hand with residuals of a carpal tunnel release procedure and moderately severe carpal tunnel syndrome of the right hand. An addendum opinion was requested and a VA examination addendum was issued in December 2006. The addendum provided that the Veteran had significant reduction in strength in his left hand due to lack of rehabilitation after his previous left carpal tunnel release procedure. Tinel's sign was positive on the left but negative on the right. Phalen's test was negative on both sides. The examiner also noted that EMG results showed moderately severe carpal tunnel in the right hand. Thereafter, the RO granted service connection for bilateral carpel tunnel and assigned ratings at the "severe" level, 50 percent for the right, dominant hand, and 40 percent for the left, non-dominant hand. The Veteran was afforded another VA examination in July 2007, which was the basis for the rating reduction. The examiner noted that the Veteran complained of significantly worsening symptoms in his right hand since the previous examination. The Veteran notably reported increasing sensations of numbness "almost all the time" and constant pain radiating to the elbow, requiring use of braces at night and at work. He reported daily flares, with pain at a 9 out of 10 in the morning that improves only after several hours. The Veteran reported that his right hand became numb with little activity. For instance, he could no longer grip a razor long enough to shave without numbness and had started trying to shave with his left hand instead; the Veteran also reported his right hand became numb after only two minutes of writing. He also reported dropping objects and that fine dexterity only lasted about 15 minutes with his right hand. He could not drive with the right hand for more than 15 to 20 minutes. The Veteran reported that his left hand and wrist symptoms were stable since the previous examination. Grip strength was approximately 31 pounds in both hands. The July 2007 VA examiner noted that the Veteran had increased pain and weakness on repetitive motion on the right side as well as decreased range of motion in the right hand. Tinel's sign was negative on both sides, however Phalen's sign was positive on the right after 10 to 15 seconds. The Board can find no evidence that the Veteran's bilateral carpel tunnel syndrome improved in between the July 2006 and July 2007 VA examinations. At no point did the July 2007 VA examiner suggest that the Veteran's bilateral carpel tunnel syndrome had improved. Indeed, in comparing the July 2006 VA examination report, which was the basis of the award of the severe ratings, with the July 2007 examination report, which was the basis for the reduction to the moderate level, the more recent report indicates actual worsening of the condition during the relevant period, particularly on the right side. For example, the Veteran complained that symptoms were worse on the right side, the examiner noted that grip strength was further reduced on both sides, and the examiner noted that Phalen's sign, which had been negative was now positive on the right. The Veteran's competent and credible February 2016 hearing testimony similarly depicted worsening symptoms. Also persuasive against a finding of improvement are the results of the June 2012 VA examination, which showed similar complaints of severe pain and numbness and a similar loss of grip strength on both sides and formed the basis of the RO's reinstatement of 50 and 40 percent ratings beginning June 14, 2012. See Dofflemeyer, supra (the reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered). Given the above evidence, the Board finds there was no actual improvement of the Veteran's bilateral carpal tunnel syndrome in the period from August 1, 2008 to June 14, 2012. As such, the rating reduction was improper and the original ratings should be restored for the entire appeal period. ORDER Restoration of the 50 percent rating for right carpal tunnel syndrome from August 1, 2008 through June 14, 2012 is granted. Restoration of the 40 percent rating for left carpal tunnel syndrome from August 1, 2008 through June 14, 2012 is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs