Citation Nr: 1748262 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 12-24 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the reduction in rating for right cubital tunnel syndrome, from 10 percent to noncompensable effective from December 10, 2011, was proper. 2. Entitlement to an increased rating in excess of 20 percent for carpal tunnel syndrome and cubital tunnel syndrome right wrist (major). 3. Entitlement to an increased rating in excess of 30 percent for right elbow, chronic tendonitis with calcification and degenerative changes (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major). 4. Entitlement to an increased rating in excess of 10 percent for right elbow impairment of supination and pronation (major) associated with carpal tunnel syndrome and cubital tunnel syndrome wrist (major). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1975 and from February 1987 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision by the RO which reduced the rating for right cubital tunnel syndrome from 10 percent to noncompensable effective December 10, 2011. The Board remanded the issues on appeal for additional development in March 2015. Those directives have been substantially complied with, but further development is necessary to address the current state of the Veteran's claims. The matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In a May 2015 rating decision, subsequent to a March 2015 Board remand, the RO determined it had made a clear and unmistakable error by rating two separate neurological evaluations of the same extremity, which had continued since the original grant of service connection. As a result, the RO combined the two neurologically based conditions with a combined evaluation since they could not be separated. In addition, the RO recharacterized the other disabilities of the right arm to more accurately reflect the Veteran's current disabilities and categorized them under the appropriate neurological and musculo-skeletal DCs. Because the original claims of the Veteran have expanded based on more current medical evaluations by the RO under the rating criteria, the Board has recharacterized the issues on appeal to reflect the realignment of the claimed disabilities and ratings of the Veteran's right arm. As such, the Board finds that the Veteran's claim for an increased evaluation for right cubital tunnel syndrome should be expanded to include his other diagnoses related to the original disability. They do not represent new and distinct claims, but are rather based on the multiple medical diagnoses from the originally claimed disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. The Veteran offered testimony before the undersigned Veterans Law Judge at a January 2015 Board hearing. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran was granted TDIU by the RO from September 28, 2011 forward, and SMC has been granted for the Veteran's right arm disabilities. 38 U.S.C.A. §§ 1114(s); 38 C.F.R. § 3.350(a), (b), (i). As such, TDIU and SMC will not be considered here. The issues of increased evaluations for the Veteran's right arm disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The RO issued a rating decision in February 2012 that reduced the rating for right cubital tunnel syndrome from 10 percent to noncompensable, effective from December 10, 2011. 2. The February 2012 rating decision did not result in a reduction or discontinuance of compensation payments. CONCLUSION OF LAW The discontinuance of the 10 percent evaluation for right cubital tunnel syndrome, effective December 10, 2011, was proper at the time. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2009); 38 C.F.R. § 3.105(e), 3.344, 4.117, Diagnostic Code 8516 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that 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 claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Propriety of the Reduction of the 10 Percent Rating for Right Cubital Tunnel Syndrome Due to the complexity of the claim currently on appeal, a detailed recitation of the procedural history is necessary. The Veteran's first rating decision, dated April 10, 2003, granted service connection for a right arm cubital tunnel syndrome at a 10 percent rating, under Diagnostic Code (DC) 8513, a neurological category of rating criteria. An April 16, 2003 rating decision granted service connection for carpal tunnel syndrome of the right wrist with degenerative arthritis, also at a rating of 10 percent, and also under a neurological rating criteria of DC 8515. In an August 2, 2010 rating decision, the Veteran received a separate evaluation for right wrist degenerative arthritis at 10 percent disabling under DC 5010-5215, a category encompassing musculo-skeletal disabilities. The February 2010 examination that evaluated the right wrist arthritis also determined that the right cubital tunnel syndrome had resolved, and therefore there was no diagnosis of right cubital tunnel syndrome at the time. The RO at the time, however, continued the right cubital tunnel syndrome at 10 percent disabling and established a routine future examination. In September 2011, VA provided an examination for the right cubital tunnel syndrome. Chronic tendonitis with calcifications and degenerative changes of the right elbow was diagnosed, and the examiner remarked this was an extension of the right cubital tunnel syndrome. However, the RO determined that September 2011 medical examination was a musculo-skeletal examination, and not a neurological one, a necessary point because the cubital tunnel syndrome was evaluated for disabling purposes under neurological DCs, and not musculo-skeletal DCs. A VA neurological examination was provided in December 2011 to evaluate the right cubital tunnel syndrome, and the examiner found no current nerve condition based on a February 2011 electromyography (EMG), and the previously mentioned February 2012 rating decision reduced the evaluation of the right cubital tunnel syndrome to noncompensable. The Veteran filed a Notice of Disagreement, also in February 2012, and submitted private medical records in support of his claim. After the March 2015 Board remand for a new VA medical examination and consideration of the private medical evidence, the RO issued a rating decision in May 2015 which proposed to discontinue service connection for the right wrist carpal tunnel syndrome with degenerative changes of the right wrist and combine this condition with the right cubital tunnel syndrome, citing a clear and mistakable error, based on VA regulations that prevent pyramiding of two neurological conditions assigned for the same extremity. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). This proposal became final after the issuance of another rating decision in August 2015. The RO's May 26, 2015 formal statement of clear and unmistakable error, under 38 C.F.R. § 3.105(a), is as follows: I hereby certify that the claims record of this veteran has been reviewed and that the following clear and unmistakable error has been identified: Rating decision dated April 10, 2003, granted service connection to carpal tunnel syndrome right wrist with degenerative changes and service connection right cubital tunnel syndrome. These conditions are both nerve based. VA regulations stipulate only one nerve based condition can be assigned per upper extremity. Each assigned effective date of this corrected rating corresponds to the date from which benefits would have been payable if it had been made on the date of the reversed decisions (38 CFR 3.400(k)). While the Veteran has asserted that his reduction from 10 percent disabling to noncompensable for his right cubital tunnel syndrome was not proper, the Board notes the February 2012 rating decision did not effectuate a reduction but rather a staged rating made coincident with the medical evaluation of that time. If the evidence showed that the severity of the Veteran's disability was different at distinct times, "staged" or separate ratings could be assigned for separate periods of time, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (requiring consideration of staged ratings in increased ratings cases); see also 38 C.F.R. §§ 3.400, 3.500. The Veteran had undergone VA examinations in September 2011 and December 2011 to assess his right cubital tunnel syndrome. At that time, the medical examiner determined the Veteran's current examination was normal, and therefore the RO reduced the evaluation for the right cubital syndrome to noncompensable as noted above. To the extent to which this was an error, however, there is no prejudice as the Veteran as proper notice was given, no reduction in total disability compensation occurred, and ultimately the Veteran was assigned more favorable evaluations for his recharacterized right arm disabilities, as will be discussed further below. The Board finds that the reduction of the rating to noncompensable effective December 10, 2011 by the February 2012 rating decision was proper. The Veteran underwent a VA examination to assess his condition in September and December 2011. Any change in evaluation is subject to the provisions of 38 C.F.R. § 3.105(e). Here, the RO was not required to notify the Veteran of the rating reduction in accordance with 38 C.F.R. § 3.105(e) because the reduction did not result in a reduction or discontinuance of compensation payments currently being made. Finally, prior to reducing a veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2016); see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Here, based on the October 2015 VA examination, the RO reasseassed the Veteran's musculo-skeletal and neurological disabilities of his right arm and wrist. In a May 2017 rating decision, the RO granted service connection for right elbow, chronic tendonitis with calcification and degenerative changes (major) is granted with an evaluation of 30 percent effective September 28, 2011 under DC 5003-5026. Also, service connection for right elbow impairment of supination and pronation (major) is granted with an evaluation of 10 percent effective September 28, 2011 under DC 5213. Both new service connected disabilities are rated under musculo-skeletal diagnostic codes, while the Veteran's current carpal tunnel syndrome right wrist (major) and cubital tunnel syndrome right wrist (major) are evaluated under a neurological DC 8513. The following table, derived from the RO's rating decision codesheets before and after the Board's remand and the RO's subsequent rating decisions, shows the comparison in the evaluations involving the Veteran's right arm and wrist disabilities. This table here is for illustrative purposes only and the RO's rating decision codesheets in the Veteran's file remains the authoritative source for the current evaluations of the Veteran's disabilities. (CONTINUED ON NEXT PAGE) BEFORE Remand AFTER Remand, as of October 2017 8515 CARPAL TUNNEL SYNDROME RIGHT (MAJOR) WRIST [Predischarge Exam] Service Connected, Gulf War, Incurred Static Disability 10% from 03/01/2003 8513 CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST (MAJOR) (PREVIOUSLY RATED AS CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST(MAJOR)) [Predischarge Exam]Service Connected, Gulf War, Incurred Static Disability 10% from 03/01/2003 (8515) 100% from 06/06/2012 (38 CFR 4.30) (8515) 10% from 08/01/2012 (8515) 20% from 10/20/2015 8516 RIGHT CUBITAL TUNNEL SYNDROME TO INCLUDE DEGENERATIVE CHANGES OF THE RIGHT WRIST [Predischarge Exam] Service Connected, Gulf War, Incurred Static Disability 10% from 03/01/2003 0% from 12/10/2011 5003-5206 RIGHT ELBOW, CHRONIC TENDONITIS WITH CALCIFICATION AND DEGENERATIVE CHANGES (MAJOR) ASSOCIATED WITH CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST (MAJOR) (PREVIOUSLY RATED AS CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST(MAJOR)) Service Connected, Gulf War, Secondary Static Disability 30% from 09/28/2011 5010-5215 DEGENERATIVE CHANGES IN RIGHT (MAJOR) WRIST 1151 Granted, Gulf War, Examination Static Disability 10% from 11/03/2009 to 12/01/2015 (Final Severance) 5213 RIGHT ELBOW IMPAIRMENT OF SUPINATION AND PRONATION(MAJOR) ASSOCIATED WITH CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST (MAJOR) (PREVIOUSLY RATED AS CARPAL TUNNEL SYNDROME AND CUBITAL TUNNEL SYNDROME RIGHT WRIST (MAJOR)) Service Connected, Gulf War, Secondary Static Disability 10% from 09/28/2011 In conclusion, therefore, the Board finds that the reduction of the rating for right cubital tunnel syndrome from 10 percent to 0 percent, effective December 10, 2011, was proper at the time. In so finding, the Board notes that the evidence indicates that the level of disability had improved at the time of the reduction. The Board notes the RO's statement of clear and unmistakable error in its improper evaluation of the Veteran's right carpal tunnel syndrome and right cubital tunnel syndrome, both neurological disabilities of the same extremity, under the legal principle of pyramiding, which prevents separate evaluations for distinct disabilities resulting from the same injury with duplicative or overlapping symptomatology. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). To the extent to which this was an error, however, there is no harm or prejudice as the Veteran as proper notice was given, no reduction in total disability compensation occurred, and ultimately the Veteran was assigned more favorable evaluations for his recharacterized right arm disabilities. ORDER The February 2012 reduction of the evaluation for right cubital tunnel syndrome from 10 percent disabling to noncompensable effective December 10, 2011 was proper. REMAND For the increased rating claims, the Board finds that additional development is necessary before these claims are ready for appellate review on the merits as explained below. The description and evaluation of the Veteran's right arm disabilities have changed significantly since his notice of disagreement in February 2012. The Veteran has testified before the undersigned that he feels that the reduction from 10 percent to noncompensable for right cubital tunnel syndrome was improper and in fact he seeks an increased rating to at least 20 percent for the disability. The Veteran is stating that he is having trouble gripping with his right wrist and hand, and that there is numbness through the middle of the elbow. He also indicated he has limitations in twisting his forearm. An April 2012 private examination and treatment record indicates the Veteran's carpal tunnel syndrome to be "severe." The Veteran has multiple service-connected disabilities relating to his right arm, to include carpal tunnel syndrome and cubital tunnel syndrome under DC 8513, chronic tendonitis with calcification and degenerative changes of the right elbow under DC 5003-5206, and right elbow impairment of supination and pronation associated with carpal tunnel syndrome and cubital tunnel syndrome under DC 5213. The Veteran's last VA examination was in October 2015. Furthermore, the Veteran receives private medical treatment for his right arm disabilities, and the most recent records must be made available to accurately assess the Veteran's current right arm disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Veteran is competent to provide opinions and describe his symptomatology, but the diagnosis and detail of his extensive right arm disabilities falls outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Furthermore, the multiple diagnoses of the Veteran's right arm will potentially have overlapping symptomatology, and thus the disabilities of the right arm as currently defined by the RO must be remanded together because they are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records pertinent to the claim and associate them with the claims file. 2. After the Veteran has signed the appropriate releases, obtain any private medical records, to include any updated records from Tahlequah City Hospital and any other records dealing with any of the Veteran's right arm disabilities not already associated with the claim and associate them with the claims file. 2. After completion of the foregoing, schedule the Veteran for a VA examination by a medical professional of sufficient expertise, and preferably different from the physician who conducted the medical examinations of October 2015, to determine the current nature and severity of his service-connected carpal tunnel syndrome and cubital tunnel syndrome of the right wrist, the right elbow chronic tendonitis with calcification and degenerative changes, and right elbow impairment of supination and pronation, to include any associated musculo-skeletal, neurological, or radicular disorders. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The claims file, including a copy of this remand, should be reviewed in conjunction with this examination. The report of the examination should specifically contain an opinion regarding the extent of the neurological, radicular, and musculo-skeletal damage resulting from the Veteran's right arm or any other related disabilities. The VA examiner should conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. If the VA examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. After the above development has been completed and any additional development deemed appropriate, readjudicate the remaining claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case 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 of Veterans' Appeals 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs