Citation Nr: 1636937 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-49 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for carpal tunnel syndrome of the right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the claim is with the Houston, Texas RO. In April 2014, the Board remanded the claim for additional development. FINDING OF FACT From the effective date of service connection, the Veteran's right carpal tunnel syndrome has been manifested by subjective sensory complaints. CONCLUSION OF LAW The criteria for a rating of 10 percent for right carpal tunnel syndrome have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321 (b), 4.1, 4.31, 4.124a, Diagnostic Code 8515 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Historically, the Veteran submitted a claim of entitlement to service connection for right carpal tunnel syndrome in July 2007. The Veteran was granted service connection for right carpal tunnel syndrome in an August 2008 rating decision effective July 11, 2007. The Veteran appealed the rating assigned for his disability and this appeal ensued. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected carpal tunnel syndrome of the right wrist is rated as noncompensable, under 38 C.F.R. § 4.124a, Diagnostic Code 8515 which pertain to paralysis, complete or incomplete, of the peripheral nerves. Pursuant to Diagnostic Code 8515, incomplete paralysis of the median nerve affecting the major extremity that is mild, moderate, and severe warrants ratings of 10, 30, and 50 percent, respectively. A 70 percent rating is warranted for complete paralysis of the median nerve of the major extremity, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. 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. 38 C.F.R. § 4.124a. The record reflects that the Veteran is right-handed. As such, his carpal tunnel syndrome of the right wrist affects his major extremity. See 38 C.F.R. § 4.69. Post-service VA treatment reports reflect a report of bilateral wrist pain in January 2006. At a March 2008 VA examination, the Veteran was noted to be right hand dominant. He reported that he was diagnosed with carpal tunnel syndrome by a private provider sometime after January 2007 based on a report of numbness and tingling of the right hand. He indicated that his symptoms came on with a prolonged static posture or with holding objects at times. The Veteran noted that he had been diagnosed with bilateral carpal tunnel syndrome based on a clinical evaluation and no supportive electrophysiologic evidence such as a nerve conduction study. He stated that his symptoms were mild and did not cause any significant functional impairment. The Veteran was on no specific medications to manage the symptoms and he was fully functional with his activities of daily living without adaptive strategies. Following a neurologic and sensory examination, the examiner diagnosed the Veteran with compressive median mononeuropathy at the right wrist (right carpal tunnel syndrome) which was mildly disabling and a history of bilateral distal sensory radial neuropathy at the wrists essentially resolved. The examiner concluded there were no subjective sensory deficits in the above mentioned distribution; however, strongly tapping on the distal branch of the nerve temporarily reproduced the symptoms. The clinical evaluation was consistent with a right carpal tunnel syndrome and there were no objective sensory deficits. In his November 2010 substantive appeal, the Veteran reported that his current carpal tunnel syndrome was manifested by loss of grip, and that if he held his right hand in one position for an extended period of time the hand would go numb. At his October 2012 Board hearing, the Veteran testified that when he rode his motorcycle, he lost all feeling in his right hand and that the hand often went completely numb. He reported that four to five days per month, he experienced constant shooting pain from the wrist to the ends of the fingers and that on better days he would only experience such severe shooting pain on an occasional basis. He also reported that he had a difficult time grasping and manipulating objects, and that it was painful to reach for objects in certain ways. The Veteran's wife testified that she often witnessed the Veteran cringe when reaching for an object due to the pain. At an October 2014 VA examination, the examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The examiner reported that the Veteran did not have carpal tunnel syndrome of the right wrist. The Veteran indicated that his whole hand went numb when he rode his motorcycle too long. The examiner stated that the Veteran's had no other symptoms and his reported intermittent right hand numbness was not a symptom of carpal tunnel syndrome. Muscle strength testing, reflex examination, sensory examination, and all nerve groups were reported to be normal. The examiner concluded that that the Veteran's service-connected disability had no functional impact on his ability to work. In considering the evidence of record and the applicable laws and regulations and resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent and no more is warranted for the Veteran's service-connected right carpal tunnel syndrome under Diagnostic Code 8515 based on the Veteran's subjective complaints of pain, tingling, and numbness. 38 C.F.R. § 4.124a. The Board finds that the weight of the evidence is against a finding that a rating in excess of 10 percent is warranted for right carpal tunnel syndrome under Diagnostic Code 8515 inasmuch as objective testing revealed no evidence of any sensory or motor deficits. As such, the evidence does not reflect that the disability at issue even meets the criteria for a 10 percent rating and a rating in excess of 10 percent is therefore not warranted. The Board has also considered whether a higher rating is warranted under any other diagnostic codes. However, the Board is unable to find any other Diagnostic Code (to include Diagnostic Codes 8516, 8616, and 8717 (for ulnar nerve impairment)) which would authorize a higher rating for a disability with no objective findings. Accordingly, a rating in excess of 10 percent may not be granted under any other Diagnostic Codes. Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321 for his increased disability claim, the applicable rating criteria contemplate all impairment resulting from his right carpal tunnel syndrome. The criteria reasonably describe the Veteran's disability level and symptomatology, to specifically include his complaints of pain, numbness, and tingling. The assigned schedular rating is, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321 (b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence does not reflect and the Veteran does not contend that he is unemployed or unemployable due to his right carpal tunnel syndrome. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service-connected right carpal tunnel syndrome. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, several examinations in this case have been undertaken. Regarding records, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. ORDER Entitlement to a 10 percent rating for carpal tunnel syndrome of the right wrist is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs