Citation Nr: 1752708 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-22 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right wrist carpal tunnel syndrome prior to April 14, 2015. 2. Entitlement to a rating in excess of 30 percent for right wrist carpal tunnel syndrome on or after April 14, 2015. 3. Entitlement to an initial rating in excess of 10 percent for left wrist carpal tunnel syndrome prior to April 14, 2015. 4. Entitlement to a rating in excess of 20 percent for left wrist carpal tunnel syndrome on or after April 14, 2015. 5. Entitlement to an initial compensable rating for status post tonsillectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from March 2004 to March 2008. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2010, the Veteran testified at a hearing before the Board. A transcript of the hearing is of record. In a January 2014 decision, the Board granted separate 10 percent ratings for left and right wrist carpal tunnel syndrome and remanded the issue of entitlement to a compensable rating for status post tonsillectomy. The Veteran appealed the portion of the Board decision denying ratings in excess of 10 percent for left and right wrist carpal tunnel syndrome to the United States Court of Appeals for Veterans Claims (Court). In October 2014, the Court granted a joint motion of the parties and remanded the claims to the Board for action consistent with the joint motion. In February 2015, the Board remanded the claims for increased ratings for right and left carpal tunnel syndrome and status post tonsillectomy for additional development. In an August 2015 rating decision, the Appeals Management Center (AMC) granted increased ratings of 30 and 20 percent for right and left wrist carpal tunnel syndrome, respectively, effective from April 14, 2015. The Board remanded the case again for further development in August 2016. That development was completed, and the case has since returned to the Board for the appellate review. In September 2017, the Veteran was informed that the Veterans Law Judge who conducted the June 2010 hearing was no longer employed by the Board. She was given the opportunity to have another hearing with a different judge, in accordance with 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, she did not respond to the letter. The Board will accordingly proceed with a decision. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve. 2. Throughout the appeal period, the Veteran's left carpal tunnel syndrome has been manifested by no more than moderate incomplete paralysis of the median nerve. 3. The Veteran's status post tonsillectomy is productive of mild nasopharyngeal regurgitation and some difficulty swallowing, but not hoarseness, inflammation, or speech impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for right carpal tunnel syndrome prior to April 14, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8515 (2017). 2. The criteria for a rating in excess of 30 percent for right carpal tunnel syndrome throughout the appeal period have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8515 (2017). 3. The criteria for an initial 20 percent rating for left carpal tunnel syndrome prior to April 14, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8515 (2017). 4. The criteria for a rating in excess of 20 percent for right carpal tunnel syndrome throughout the appeal period have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8515 (2017). 5. The criteria for an initial compensable rating for status post tonsillectomy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.144.97, Diagnostic Code 6516 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor her representative has 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). Law and Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when 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); Fenderson v. West, 12 Vet. App 119 (1999). In this case, as staged ratings have already been assigned for the service-connected right and left carpal tunnel syndrome, the Board will consider the propriety of the ratings assigned at each stage. I. Carpal Tunnel Syndrome The Veteran's right and left carpal tunnel syndrome are currently evaluated pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under that diagnostic code, mild incomplete paralysis is rated as 10 percent disabling for the major and minor extremity. Moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side, and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the median nerve, 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; pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex the distal phalanx of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, is rated 70 percent disabling on the major side and 60 percent on the minor side. In this case, the Veteran is right-handed. Therefore, her right upper extremity is considered major, and his left upper extremity is minor. During an October 2007 VA examination, the Veteran reported that her bilateral hand pain began when she served as a dental hygienist. She stated that, after repetitive work on patients' mouths, she noticed aching in her hands, as well as tingling at the base of her hands. She denied having numbness, loss of strength, decreased sensation, or incoordination. She indicated that her right hand was her dominant hand. A physical examination revealed full range of motion of both wrists. Phalen's and Tinel's tests were positive, bilaterally. There was no evidence of a gap between any finger and the proximal transverse crease of the hand on maximum flexion of the finger. There was also no evidence of paralysis or motor loss bilaterally, and she he had 2+ reflexes in the upper extremities. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome. During the June 2010 hearing, the Veteran reported experiencing pain with writing and typing. The pain went from her wrist to her arm. She stretched, relaxed her arms, and took medication for treatment. During a January 2011 VA examination, the Veteran reported having bilateral carpal tunnel syndrome that was worse on the right side than the left side. She had pain in the anterior wrist and palm, which did not radiate to the fingers. She also complained of a pins and needles sensation, but mostly soreness. She further indicated that the pain was worse when working at a computer for more than 10 minutes and with prolonged writing and braiding hair. It had been less bothersome since she stopped working and was a student at that time. A reflex examination yielded normal findings in both upper extremities, and sensory and motor examinations were normal. Phalen's sign was positive on the right, but negative on the left. Tinel's test was negative bilaterally. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome and indicated that the disability impacted occupational and daily activities in that it caused pain and a pins and needles sensation with repetitive activities. During a VA examination in April 2015, the Veteran reported that she took Ibuprofen for pain. She indicated that she experienced symptoms when exercising, writing, typing, doing her hair, and driving. With driving, she had to reposition her hands very frequently to avoid pain and tension/tightness in the wrist and forearm. She was right-handed. Her symptoms included moderate intermittent pain, mild paresthesias, and mild numbness of the bilateral upper extremities. She occasionally had pain that radiated up toward the elbows. Upon examination, her muscle strength was normal for the bilateral upper extremities. The Veteran's reflexes were also normal for both biceps, but diminished (1+) for the triceps and brachioradialis. A sensory examination of the bilateral upper extremities was normal. The examiner indicated that the nerves of the upper extremities (radial, median, ulnar, musculocutaneous, circumflex, long thoracic, upper radicular, middle radicular, and lower radicular) were normal. The examiner diagnosed the Veteran with bilateral carpal tunnel syndrome and indicated that the disability impacted employment, in that repetitive motion at the wrists produced tingling, numbness, and pain to the extent that it caused her to limit or curb those activities, including prolonged writing or typing. During a February 2017 VA examination, the Veteran reported that her bilateral carpal tunnel syndrome had worsened due to increased pain. The examiner noted that the signs and symptoms attributable to a peripheral nerves conditions included severe constant pain of the right and left upper extremity, paresthesias and/or dysesthesias of the right and left upper extremity, and numbness of the right and left upper extremity. Other symptoms included wrist, shoulder and hand pain. Upon examination, muscle strength testing was normal (5/5) for bilateral elbow flexion, elbow extension, grip, and pinch. It was slightly decreased (4/5) for bilateral wrist flexion and wrist extension. The Veteran did not have muscle atrophy. A reflex examination of the biceps, triceps, and brachioradialis was normal, and a sensory examination was normal for the upper extremities. There were no trophic changes attributable to peripheral neuropathy. The examiner indicated that Phalen's sign and Tinel's sign were positive bilaterally. The examiner also stated that there was mild incomplete paralysis of the right and left median nerves. No other nerves were identified. The examiner diagnosed the Veteran with right and left wrist carpal tunnel syndrome and indicated that the disability impacted her ability to work in that she would have difficulty typing, driving for long periods of time, cleaning, and reaching overhead. With respect to the service-connected right carpal tunnel syndrome, the Board finds that the aforementioned evidence supports entitlement to a 30 percent evaluation throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied. However, the October 2007 VA examiner did not provide complete neurological findings with sensory examination, and none of the examiners prior to April 2015 provided an assessment of the severity of the right carpal tunnel syndrome. Moreover, the Veteran's reports of pain, numbness, and difficulties with use of the hand/wrist have been consistent throughout the examinations. Thus, resolving any reasonable doubt in favor of the Veteran, the Board concludes that a 30 percent rating is warranted. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 30 percent for her right carpal tunnel syndrome at any point during the appeal period. However, the Board finds that such a rating is not warranted. In this regard, the Board notes that motor, sensory, and strength examinations of the right upper extremity has yielded largely normal findings. There have been occasional deficits noted in strength or reflexes, but no significant deficit or abnormality has been documented. Moreover, the February 2017 VA examiner found the Veteran's disability to be consistent with no more than mild incomplete paralysis of the median nerve. Therefore, the Board concluded that severe incomplete paralysis has not been more nearly approximated. Likewise, with respect to the service-connected left carpal tunnel syndrome, the Board finds that the aforementioned evidence supports a 20 percent throughout the appeal period. The Board again notes that the evidence has varied. However, the October 2007 VA examiner did not provide complete neurological findings with sensory examination, and none of the examiners prior to April 2015 provided an assessment of the severity of the right carpal tunnel syndrome. The Veteran's reports of pain, numbness, and difficulties with use of the left hand/wrist have been consistent throughout the examinations. Thus, resolving any reasonable doubt in favor of the Veteran, the Board concludes that a 20 percent rating is warranted. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 20 percent for her left carpal tunnel syndrome at any point during the appeal period. However, the Board finds that such a rating is not warranted. In so finding, the Board notes that motor, sensory, and strength examinations of the left upper extremity has yielded largely normal findings. There have been occasional deficits noted in strength or reflexes, but there has been no significant deficit or abnormality documented. Moreover, the February 2017 VA examiner found the Veteran's disability to be consistent with no more than mild incomplete paralysis of the median nerve. Therefore, the Board finds that severe incomplete paralysis has not been more nearly approximated. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. Status Post Tonsillectomy The Veteran's status post tonsillectomy has been assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6599-6516. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 6516, a 10 percent evaluation is warranted with hoarseness and inflammation of chords or mucous membrane. A maximum 30 percent evaluation is warranted when there is hoarseness with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Id. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. During a VA examination in October 2007, the Veteran reported that she had her tonsils removed in 2006 and they also clipped her uvula during the surgery. Since that surgery, she reported experiencing frequent choking episodes and difficulty drinking liquids. She indicated that the she had followed up with her surgeons and was told that the uvula was "too short." She was given drinking precautions to prevent aspiration. The examiner noted that the Veteran had undergone a total uvulectomy during the tonsillectomy that caused chocking when swallowing. The examiner diagnosed her with residual shortening of the uvula status post tonsillectomy. During a VA examination in August 2008, the Veteran reported that she previously had frequent episodes of strep throat, which were alleviated by tonsillectomy in 2006, with some part of her uvula also being clipped. She also reported having chronic dryness in her nose. Upon examination, there was some mild redness and edema of the nose, although not particularly pathological. The evaluation of the larynx at that time was normal. The examiner noted an impression of remote history of probable viral laryngitis. There was no evidence of laryngeal pathology. During the June 2010 hearing, the Veteran testified that she choked when drinking and eating and had regurgitation through her nose as a result of the tonsillectomy. She also reported experiencing problems with food being caught in the back of her throat. She indicated that she did not have difficulties with breathing. A March 2014 VA examination report reflects that the Veteran underwent a tonsillectomy in 2006. She described undergoing a prolonged healing period with persistent soreness and difficulty swallowing. She reported continued difficulty with eating and drinking quickly and indicated that liquid went to the back of the nose or through the nose. She indicated that such symptoms occurred four times per week. The Veteran also described an abnormal appearance of the palate with a flap that seemed to hang too low. She indicated that she not been losing weight or experience aspiration pneumonia due to symptoms. She also stated that she could hear mucus in her lungs and had to repeatedly cough to clear her lungs. She occasionally had thick mucus in her ears. The examiner indicated that the Veteran did not have chronic laryngitis. She did have mild nasopharyngeal regurgitation/velopalatal insufficiency by description. There was scarring associated with the tonsillectomy, but it was not painful or unstable and did not measure an area greater than 39 square centimeters. The Veteran was diagnosed with a tonsillectomy, and the examiner indicated that her condition did not impact her ability to work. During a VA examination in May 2015, the examiner noted that the Veteran underwent a tonsillectomy in 2006 and began experiencing what sounded like nasopharyngeal reflux. The condition had continued to the present and was evaluated in 2014 by an ear, nose, and throat physician as mild nasopharyngeal regurgitation. The examiner indicated that the Veteran did not have any condition of the nose, throat, larynx, or pharynx. No other pertinent physical findings were indicated. The examiner diagnosed the Veteran with mildly shortened soft palate and velar insufficiency. He noted that the assessment of mild nasopharyngeal reflux previously rendered was consistent with the ongoing history and observations. He determined that the condition did not impact the Veteran's ability to work. During a January 2017 VA examination, the examiner indicated that the Veteran did not have any pertinent physical findings, complications, conditions, signs, or symptoms related to the tonsillectomy. She indicated that the condition was quiescent. The examiner diagnosed the Veteran with residuals, status post tonsillectomy. In an addendum opinion obtained in February 2017, a physician reviewed the January 2017 examination report and indicated that there were no symptoms of hoarseness, inflammation, speech impairment, and/or difficulty swallowing, and there was no effect on the Veteran's ability to function in an occupational setting. In summary, the record reflects that the Veteran's status post tonsillectomy is productive of mild nasopharyngeal regurgitation. However, the VA examinations and treatment records otherwise do no establish that the disability and symptoms are productive of hoarseness with inflammation of the cords or mucous membrane. Accordingly, a compensable evaluation is not warranted under Diagnostic Code 6516. The Board has also considered other applicable diagnostic codes. Under Diagnostic Code 6521, a 50 percent rating is warranted for stricture or obstruction of the pharynx or nasopharynx, or; absence of soft palate secondary to trauma, chemical burn, or granulomatous disease, or; paralysis of the soft palate with swallowing difficulty (nasal regurgitation) and speech impairment. 38 C.F.R. § 4.97, Diagnostic Code 6521. Here, while there is insufficiency of the soft palate, absence of the soft palate secondary to trauma, chemical burn, or granulomatous disease is not indicated. In addition, while the disability is productive of nasal regurgitation and swallowing difficulty, speech impairment is not demonstrated, and the 2017 VA examiner specifically indicated that the disability was not productive of speech impairment. Accordingly, a compensable rather under Diagnostic Code 6521 is not warranted. The Board has considered other applicable codes, but has found none. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321 (b)(1). However, in this case, the Board finds that the record does not show that the Veteran's stauts post tonsillectomy is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321 (b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case 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 symptomatology of the Veteran's assigned evaluation with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. The May 2015 VA examiner noted that the Veteran had mild nasopharyngeal regurgitation; however, she did not have any other condition of the nose, throat, larynx, or pharynx, and no other pertinent physical findings were indicated. The January 2017 VA examiner also stated that the Veteran did not have any pertinent physical findings, complications, conditions, signs, or symptoms related to the tonsillectomy. She indicated that the condition was quiescent. In addition, the February 2017 VA examiner observed that there were no symptoms of hoarseness, inflammation, speech impairment, and/or difficulty swallowing, Moreover, even if the schedular criteria were found to be inadequate, the evidence does not show that the Veteran has had marked interference with employment and frequent periods of hospitalization due to her service-connected status post tonsillectomy. In fact, the May 2015 VA examiner determined that the condition did not impact the Veteran's ability to work, and the February 2017 VA examiner indicated that there was no effect on the Veteran's ability to function in an occupational setting. In addition, the Veteran's treatment records do not show that her symptomatology has resulted in hospitalization or marked interference with employment. The Board further 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 of the service-connected disabilities experienced. However, the Court has also held that "[a]lthough the Board must consider any combined effects resulting from all of a claimant's service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal." Yancy v. McDonald, 27 Vet. App. at 496. In this case, the Veteran and her representative have not asserted, and the evidence of record does not show or suggest, any combined effect or collective impact from multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy, 27 Vet. App. at 495 (holding that "[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record"). Thus, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the appellant for a disability that can be attributed only to the combined effect of multiple conditions. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected status post tonsillectomy under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra; Doucette v. Shulkin, 28 Vet. App. 366 (2017). ORDER Entitlement to an initial 30 percent rating for right wrist carpal tunnel syndrome prior to April 14, 2015, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for right wrist carpal tunnel syndrome throughout the appeal period is denied. Entitlement to an initial 20 percent rating for left wrist carpal tunnel syndrome prior to April 14, 2015, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for left wrist carpal tunnel syndrome throughout the appeal period is denied. Entitlement to an initial compensable evaluation for status post tonsillectomy is denied. ____________________________________________ J. W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs