Citation Nr: 1748237 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 11-28 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent from December 1, 2008, and an evaluation in excess of 30 percent from February 27, 2017, for right carpal tunnel syndrome. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to October 1991. This appeal to the Board of Veterans Appeals (Board) arose from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a September 2016 video teleconference hearing. A transcript of that testimony is associated with the claims file. In a June 2017 rating decision, the RO granted service connection for right shoulder impingement syndrome with rotator cuff tear and arthritis with a 20 percent evaluation assigned from December 1, 2008; 100 percent evaluation assigned from March 11, 2010; and 20 percent evaluation assigned from May 1, 2010. The RO also granted service connection for left shoulder impingement syndrome with rotator cuff tear and arthritis with a 20 percent evaluation assigned from December 1, 2008; 100 percent evaluation assigned from February 22, 2017; and 20 percent evaluation assigned from May 1, 2017. As these were grants of full benefits, the issues are no longer before the Board on appeal. In a June 2017 rating decision the RO granted an increased evaluation for right wrist carpal tunnel syndrome, effective February 27, 2017. As this was not a grant of benefits in full, the issue remains on appeal. The case was remanded in December 2016 for further development and has been returned to the Board for appellate review. FINDING OF FACT For the entire appeal period, the Veteran's right carpal tunnel syndrome has more closely approximated moderate incomplete paralysis of the right median. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no more for the entire appeal period have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8599-8515 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The increased rating for carpal tunnel syndrome claim stems from the initial grant of service connection. Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Increased Rating Factual Background and Analysis The Veteran claims that an initial evaluation in excess of 10 percent from December 1, 2008, and an evaluation in excess of 30 percent from February 27, 2017, for his right carpal tunnel syndrome are warranted. The Board has determined that a 30 percent rating, but no more is warranted for the entire period on appeal. The Veteran's right carpal tunnel syndrome is currently rated under Diagnostic Code 5299-8515. Diagnostic Code (DC) 8515 pertains to paralysis of the median nerve. 38 C.F.R. § 4.124a. Initially, the Board observes that the record reflects that the Veteran is right-handed. See February 2017 VA examination report. Pursuant to DC 8515 for the dominant (right) upper extremity, a 10 percent evaluation is warranted when there is mild incomplete paralysis of the median nerve. A 30 percent evaluation is warranted when there is moderate incomplete paralysis. A 50 percent rating is provided for severe incomplete paralysis. A maximum 70 percent evaluation is warranted for complete paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board notes that neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. April 2009 VA occupational therapy notes indicated the Veteran was seen for his diagnosed bilateral carpal tunnel syndrome condition and was properly fitted with right and left large wrist splints. April 2009 VA outpatient treatment notes indicated that Veteran was seen for complaints of hand pain. He report that his bilateral carpal tunnel release surgery made both of his hands hurt worse and caused increased swelling. The Veteran was afforded a May 2016 VA peripheral nerves conditions examination. The examination report revealed a diagnosis of right wrist carpal tunnel syndrome. The Veteran reported symptoms of pain, numbness, tingling, and burning sensation that occasionally hindered him from performing routine activities of daily living. The Veteran had symptoms attributed to peripheral nerve conditions including moderate constant pain of the right upper extremity; severe intermittent pain of the right upper extremity; severe paresthesias and/or dysesthesias of the right upper extremity; and severe numbness of the right upper extremity. Additionally, the Veteran had decreased hand/finger sensation bilaterally; mild incomplete paralysis of the median nerve bilaterally; 4/5 wrist flexion and extension bilaterally; 4/5 grip bilaterally; and 4/5 pinch bilaterally. The Veteran's Phalen's sign test was positive bilaterally and Tinel's sign test was positive bilaterally. EMG studies were noted as not being performed. The record includes an August 2016 Correspondence from the Veteran's private treatment provider indicating that the Veteran had bilateral carpal tunnel syndrome as result of a cervical fracture with residual neuropathy. The Veteran's bilateral carpal tunnel syndrome has caused him to lose his grip strength bilaterally. The Veteran suffered from carpal tunnel syndrome symptoms. The Veteran was afforded a February 2017 VA peripheral nerves conditions examination. The examination report revealed a diagnosis of bilateral carpal tunnel syndrome. The examination report indicated that the Veteran was right hand dominant. Symptoms attributed to peripheral nerve conditions included mild constant pain of the bilateral upper extremities; moderate intermittent pain of the bilateral upper extremities; moderate paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the bilateral upper extremities. The Veteran had 4/5 wrist flexion and extension bilaterally; 4/5 grip bilaterally; and 4/5 pinch bilaterally. The Veteran's Phalen's sign test was positive bilaterally and Tinel's sign test was positive bilaterally. The Veteran had decreased hand/finger sensation bilaterally and moderate, incomplete paralysis of the median nerve bilaterally. The Veteran was noted as using braces regularly for assistance. EMG studies were performed in March 2009 that revealed abnormal right upper extremity. The examiner indicated that the severity of the Veteran's upper extremity peripheral neuropathy was "moderate." Based on these findings, the Board finds that the Veteran's right carpal tunnel syndrome more nearly approximates the criteria for a 30 percent rating for the entire appeal period, but there are no distinctive periods where the Veteran has met or nearly approximated the criteria for a rating in excess of 30 percent under Diagnostic Code 8515. In this regard, although the May 2016 VA examination report noted the Veteran to have experienced severe intermittent pain, paresthesias and/or dysesthesias, and numbness of the right upper extremity, the examiner determined that the Veteran had mild incomplete paralysis of the median nerve bilaterally. Moreover, the Veteran had 4/5 wrist flexion and extension bilaterally; 4/5 grip bilaterally; and 4/5 pinch bilaterally. See May 2016 and February 2017 VA examination reports. The February 2017 VA examiner determined that the severity of the Veteran's upper extremity peripheral neuropathy was "moderate." As such, the Veteran's overall right carpal tunnel syndrome disability does not more nearly approximate the criteria for severe incomplete paralysis. Accordingly, the Board finds that for the entire appeal period, the evidence more nearly approximates the criteria for moderate incomplete paralysis, and a rating in excess of 30 percent is not warranted at any time during the appeal period. See 38 C.F.R. § 4.124a, Diagnostic Codes 8515. Thus, the Board concludes that the weight of the evidence is against a rating in excess of 30 percent during the period on appeal. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.21 (2016). ORDER A 30 percent rating for right carpal tunnel syndrome for the period prior to February 27, 2017, is granted. A rating in excess of 30 percent for right carpal tunnel syndrome for the entire period on appeal is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs