Citation Nr: 1724971 Decision Date: 06/30/17 Archive Date: 07/10/17 DOCKET NO. 13-03 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Increased evaluation of cerebrovascular accident with right side hemiparesis and carpal tunnel syndrome right wrist, status post CTS release, which is currently 10 percent disabling (right upper extremity disability). 2. Increased evaluation of the service-connected coronary artery disease currently evaluated as 10 percent disabling (CAD). REPRESENTATION Appellant represented by: Brett Buchanan, Agent ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran had active duty service in the United States Army from May 19, 1969 to November 1970. His service included a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of cerebrovascular accident with right side hemiparesis and carpal tunnel syndrome right wrist, status post CTS release, was recharacterized on appeal by the RO to best encompass the Veteran's symptoms in the June 2015 rating decision. The RO recharacterized this issue due to the evidence of record and the medical information gathered in an examination conducted by VA in June 2015. The issue of coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran's right upper extremity disability is manifested by complaints of pain, tingling, numbness and unpleasant sensations in the right thumb and fingers. 2. The preponderance of the evidence demonstrates that the Veteran's right upper extremity disability is characterized by mild incomplete paralysis of the median nerve. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for cerebrovascular accident with right side hemiparesis and carpal tunnel syndrome right wrist, status post CTS release, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8515 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). The Board notes that the Veteran is challenging the initial evaluation assigned following the grant of service connection for the residuals from his stroke. In Dingess, the Court also held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, regardless of whether the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify as to this issue has been satisfied. As to the duty to assist, the Board finds that VA has secured all identified, available, and pertinent in-service and post-service evidence to include private treatment records, Social Security Administration (SSA) records, and VA treatment records. See 38 U.S.C.A. § 5103A(b). VA has also provided the Veteran with several VA examinations in order to establish service connection and to determine the severity of the Veteran's disability in September 2009, February 2010 and June 2015. Moreover, the Board finds that the opinions provided by the VA examiners are adequate to adjudicate the claim because they were provided after a review of the record on appeal, it referred to a detailed medical history from the claimant, and, after the Veteran was examined, the examiner provided an opinion as to the diagnosis and symptoms associated with the Veteran's disability, which was based on citations to the relevant evidence found in the claims file. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007) In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the VBMS and virtual VA claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claim's folders show, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Increased Rating The Veteran seeks a higher initial rating in excess of the 10 percent currently assigned for his service-connected right upper extremity disability throughout the pendency of the appeal. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2016). Separate 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. Id. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Moreover, when an unlisted condition is encountered, it will be permissible to rate on the basis of a closely related disease or injury in which not only the function affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2015). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). A. The Claim The Veteran's right upper extremity disability is currently rated as 10 percent disabling from January 1, 2010, under Diagnostic Code 8515 and seeks a rating in excess of 10 percent. 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, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2016). 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. 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. 38 C.F.R. § 4.123 (2016). The Veteran's right upper extremity disability is rated under DC 8515. This DC provides ratings for both the "minor" and the "major" wrist. In this context "minor" and "major" refer to the dominant or nondominant side; for example the right wrist would be the major wrist for a right handed person. This DC addresses complete and incomplete paralysis of the medial nerve. Under DC 8515, mild incomplete paralysis of the minor or major wrist warrants a 10 percent rating. 38 C.F.R. § 4.124a. Moderate incomplete paralysis warrants a 20 percent rating for the minor wrist and a 30 percent rating for the major wrist. 38 C.F.R. § 4.124a, DC 8515. Severe incomplete paralysis warrants a 40 percent rating for the minor wrist and a 50 percent rating for the major wrist. Id. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 60 percent rating for the minor wrist and a 70 percent disability rating for the major wrist. Id. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2016). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2016). In addition, the Veteran is competent to describe his symptoms and their effects. See Layno v. Brown, 6 Vet. App. 465 (1994). While he is credible to the extent that he sincerely believes he is entitled to a higher rating, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code, as this is a complex medical determination outside the realm of common knowledge of a lay person. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran's contentions regarding the appropriate rating are outweighed by the competent medical evidence that evaluates the true extent of his disability. In considering the appropriate disability rating, the Board has also taken into account the Veteran's statements regarding his disability. The record reflects that the Veteran has reported that he experiences pain in his wrist and hands. See Saint Louis University November 11, 2012 Medical Record. Moreover, the Veteran stated that his right hand has decreased grip strength, numbness and tingling in his hand. See SSA Disability Report. The Board acknowledges that the Veteran is considered competent to report symptoms because this requires only personal knowledge as it comes to him through his senses; however, he is not competent to identify a specific level of his right upper extremity disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Turning to the medical evidence at hand, the Veteran was first given a VA examination in September 2009, at which time the examiner stated that the Veteran's upper extremity functioned normally in strength and in manipulative assessment patterns. Moreover, he had normal rapid alternating movements being able to transfer a small ball between both hands nimbly and his grips were equal and full. Subsequently, the Veteran was afforded another examination in February 2010 and that examiner noted that the Veteran had tingling, numbness, and unpleasant sensations in the right thumb and fingers. Moreover, the examiner stated that he had no intrinsic muscle atrophy of the right hand, his grip strength is 4/5 on the right in comparison to 5/5 on the left, and his fist was complete on the right. Once more, the Veteran was afforded a VA examination in June 2015. At this examination, the VA examiner indicated that the Veteran had no pain or paresthesia in his right upper extremity but he did have mild numbness. Moreover, the examiner indicated that while the Veteran had incomplete paralysis of the median nerve, the severity of the paralysis was mild. In sum, the Board finds that a rating in excess of 10 percent is not warranted in this case. The Board has not overlooked the Veteran's statements or his medical history but finds that the most probative evidence of record are the opinions provided by the VA examiners. Accordingly, the Board has placed significant weight on the findings of the VA examiners because these findings were the basis for the most thorough evaluations of the Veteran's disability. Moreover, the record shows a consistent disability picture throughout the pendency of this appeal and finds no symptoms that indicated a moderate, severe, or complete paralysis of the median nerve. Thus, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under Diagnostic Code 8515. III. Other Considerations The Board will next consider if the Veteran's right upper extremity disability is manifested by adverse symptomatology that allows for a separate compensable rating for the Veteran's right upper extremity disability under another Diagnostic Code at any time during the pendency of the appeal. In this regard, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). With the above criteria in mind, the Board notes that Diagnostic Code 8515 pertains specifically to the disability at issue - paralysis of the median nerve. The Board acknowledges that the Veteran has received other diagnoses that have been medically linked to right upper extremity disability, however a separate evaluation cannot be assigned as the symptoms overlap with each other and the evaluation of the same manifestation under different diagnoses are to be avoided according to 38 CFR §4.14 (2016). This is true at all times during the pendency of the appeal and therefore the Board need not consider staged ratings. See Hart. IV. Extraschedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2016). 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). Here, however, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptoms of the Veteran's service connected disability with the established criteria shows that the rating criteria reasonably describe his disability levels and symptomatology. In short, there is nothing in the record to indicate that the service-connected disability causes impairment with employment over and above that is contemplated in the assigned schedular rating. The Board, therefore, has determined that referral of this issue for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted at any time during the pendency of the appeal. In reaching this conclusion, the Board has not overlooked the recent decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) in which it held that the plain language of 38 C.F.R. 3.321(b)(1) provides for referral for extraschedular consideration based on the collective impact of multiple service-connected disabilities. However, the Board finds no basis to conclude that there is a "compounding" or collective impact between these disabilities, and indeed, neither the Veteran nor his representative has asserted otherwise. As such, the Board finds that even taking into account Johnson this matter need not be remanded for referral to the Director, Compensation Service, for extraschedular consideration. Lastly, the Board has also considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU when the appellant claims she is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the record does not show that his right upper extremity disability acting alone or in conjunction with his other service-connected disability (i.e., diabetic nephropathy, diabetes mellitus type II, coronary artery disease, peripheral neuropathy, and bilateral lower extremity peripheral neuropathy) precludes gainful employment. Specifically, this particular matter was addressed in the June 2015 VA examination and the examiner stated that with respect to the service-connected right upper extremity disability, the Veteran had no functional impairments from this which would render him unable to do physical or sedentary work. ORDER A rating in excess of 10 percent for cerebrovascular accident with right side hemiparesis and carpal tunnel syndrome right wrist, status post CTS release, is denied. REMAND As to the Veteran's claim for coronary artery disease, the record reflects that on April 3, 2017, the Veteran's representative submitted new evidence that is pertinent to the Veteran's CAD claim. The Veteran's representative also requested a supplemental statement of the case in connection with this evidence. Therefore, the Board finds that the appeal must be remanded to afford the Veteran his due process right to initial AOJ consideration of this evidence. See 38 C.F.R. § 19.31 (2016) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). While the appeal is in remand status, the AOJ should obtain and associate with the claims file any outstanding VA and private treatment records. See 38 U.S.C.S. § 5103A(b) (West 2014). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from June 5, 2015. 2. After obtaining authorizations from the Veteran, associate with the claims file any contemporaneous private treatment records from June 5, 2015. 3. The AOJ should review the medical information submitted on April 3, 2017, further develop the claim as necessary, and readjudicate the remaining claim on appeal. If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC) that addresses all evidence added to the claims file since the January 2013 statement of the case, and the Veteran should thereafter be given an appropriate opportunity for response before returning the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 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 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs