Citation Nr: 1756843 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-20 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for status post carpal tunnel release, with median nerve neuropathy, left (non-dominant) wrist/hand. 2. Entitlement to a rating in excess of 10 percent for painful surgical scar, left wrist. 3. Whether there was clear and unmistakable error (CUE) in a September 1992 rating decision that granted service connection for status post carpal tunnel release, with limited motion and median nerve neuropathy of the left wrist/hand and assigned a 20 percent disability rating. 4. Entitlement to an effective date prior to September 13, 2012, for the grant of service connection and the separate 10 percent rating assigned for left wrist tenosynovitis. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who had active service from June 1981 to June 1985 and from March 1986 to February 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2013 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. In several subsequent correspondences, the Veteran has requested another Board hearing. A Board hearing will be granted to an appellant when requested. See 38 C.F.R. § 20.700 (2017). As noted, the Veteran already has presented testimony at a Board hearing before the undersigned VLJ and has provided no adequate reasons in his various correspondence why another Board hearing should be scheduled or why the October 2016 Board hearing was not adequate for presenting his arguments regarding his appeal. Thus, the Board denies the Veteran's request for an additional hearing. See also Cook v. Synder, 28 Vet. App. 330 (2017); see 38 U.S.C.A. § 7107 (2012); 38 C.F.R. §§ 20.707, 20.1304 (2017). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left (non-dominant) wrist status post carpal tunnel release, with median nerve neuropathy has been manifested by no more than moderate incomplete paralysis of the median nerve. 2. The Veteran's service-connected painful surgical scar of the left wrist is superficial and measures 10cm x 0.3cm, but is not unstable, does not exceed an area of 12 square inches (77 sq.cm), does not limit motion or function of the left wrist, and has no other disabling effect. 3. In a September 1992 rating decision, the RO granted service connection for left wrist status post carpal tunnel release, with limited motion and median nerve neuropathy and assigned an initial 20 percent disability rating under 38 C.F.R. Part 4, Diagnostic Code (Code) 8515. 4. The September 1992 rating decision was consistent with and reasonably supported by the evidence then of record, as well as existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcomes. 5. VA received the Veteran's claim for an increased rating for his service-connected left wrist disability on September 13, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left wrist status post carpal tunnel release, with median nerve neuropathy 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, Code 8515 (2017). 2. The criteria for a rating in excess of 10 percent for painful surgical scar of the left wrist are not met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Code 7804 (2017). 3. The September 1992 rating decision that assigned an initial 20 percent disability rating for service-connected left wrist status post carpal tunnel release, with limited motion and median nerve neuropathy did not involve CUE. 38 U.S.C.A. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 4. The criteria for an effective date prior to September 13, 2012, for a separate 10 percent disability rating for left wrist tenosynovitis are not met. 38 U.S.C.A. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816, 4.71a Codes 5215-5024 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b). The notice requirements were accomplished in a January 2013 letter. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The Veteran was apprised of the information and evidence needed to substantiate his claims; including the information and evidence to be submitted by him and the information and evidence to be obtained by VA. He was apprised of how disability evaluations and effective dates are assigned; and of the type of evidence that impacts those determinations. He was also apprised of what evidence must show for CUE. As for VA's duty to assist, all relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals has been obtained. The Veteran's pertinent medical records have been obtained. In addition, the Veteran was afforded multiple VA examinations during the appeal period regarding his increased rating claims. The Board has reviewed the examination reports and finds that they are adequate because the examiners discussed the Veteran's pertinent medical history and current complaints; physically examined the Veteran; reported all findings in detail; and discussed the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Law and Analysis The Board has carefully reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. The Board's analysis below focuses specifically on the elements needed to substantiate the claims, and the evidence that the record shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period beginning one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran submitted his claim for increase in September 2012, as such, the relevant time period for consideration of evidence is September 2011. Left wrist status post carpal tunnel release The Veteran is seeking a higher rating for his left wrist disability. In written statements of record, he has asserted that his left wrist disability has increased in severity. Historically, the service-connected left wrist status post carpal tunnel release with median nerve neuropathy has been rated 20 percent since February 7, 1992. As this rating has been in effect for more than 20 years, such rating is protected and may not be reduced except by showing that such rating was based on fraud. See 38 C.F.R. § 3.951 (b) (2017). The left wrist status post carpal tunnel syndrome with median nerve neuropathy disability is currently evaluated pursuant to the criteria of 38 C.F.R. § 4.124a, Code 8515. Under that 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, his service-connected left upper extremity is minor. As noted, in September 2012, the Veteran submitted a claim for increase. In several statements, as well as his October 2016 testimony, he indicates that his left wrist disability has increased in severity. During August 2013 VA Joints examination, results show range of motion of left wrist within normal limits with palmar flexion at 80 degrees or greater, and left wrist dorsiflexion at 70 degrees or greater. The examiner reports functional loss and/or functional impairment of the left wrist described as less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner also reports localized tenderness or pain on palpation. The examiner notes that the Veteran's left wrist condition impacts his ability to work described as pain on motion after repetitive use (for example, pain of the left wrist on turning wrenches and lifting and carrying objects). During August 2013 VA peripheral nerves examination, results show mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the left upper extremity. Muscle atrophy was not noted. Reflexes of the left upper extremity were 2+, and sensory exam was normal for the left upper extremity. Phalen's sign and Tinel's sign tests were positive for the left upper extremity. VA exam reports mild median nerve incomplete paralysis. The examiner reported functional impact of numbness and tingling on the distribution of the median nerve on the left hand. The relevant evidence shows that an evaluation of 20 percent most closely approximates the Veteran's disability picture. A higher evaluation of 40 percent is not warranted unless the nerve damage causes severe incomplete paralysis. Although the Veteran reported having symptoms of moderate pain on August 2013 VA examination, the objective evidence of record reflects no more than mild incomplete paralysis. As described above, objective testing completed during the appeal period revealed normal sensory, muscle strength, and reflex testing. Additionally, the August 2013 VA examiner indicated the Veteran's ulnar, radial, musculocutaneous, circumflex, long thoracic, upper radicular group, middle radicular group, and lower radicular group nerves are normal. Although the examiner's characterization of the disability as mild is not dispositive, it is an element for consideration and is supported by the evidence of record. The Veteran is competent to report symptoms of having moderate pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. The Board has considered whether any staged rating is appropriate for the assigned rating discussed above. The Board has found that evidence regarding the level of disability for the left wrist status post carpal tunnel release is consistent with the assigned rating for the entire relevant time period here on appeal. The record does not indicate any significant increase or decrease in such symptoms at any time during the appeal period that would warrant a higher rating. Accordingly, a staged rating is not warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, the evidence shows that the nerve damage is mild which warrants a 10 percent rating; however, as noted above, the 20 percent rating is protected. As such, a preponderance of the evidence is against his claim and an evaluation in excess of 20 percent is denied. Left wrist scar The Veteran has been assigned a separate 10 percent evaluation for scarring of the left wrist pursuant to 38 C.F.R. § 4.118, Code 7804, effective November 25, 2003. Code 7804 provides for a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note (1). Note (2) provides that if one or more scars are both unstable and painful, then 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Code 7804, when applicable. The Board will also consider whether the Veteran would be entitled to a higher or separate rating under the other Codes under 38 C.F.R. § 4.118, Codes 7800, 7801, 7802, and 7805. Code 7800 addresses scarring of the head, face, or neck and does not apply to the right wrist scarring. Code 7801 addresses scars not of the head, face, or neck that are deep and nonlinear and provides a 20 percent rating where the scar area or areas is at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). Code 7801 does not apply to the Veteran's linear surgical left wrist scar that covers less than 12 square inches (77 square centimeters). Code 7802 addresses scars not of the head, face, or neck that are superficial and nonlinear. Code 7802 also does not apply to the Veteran's linear surgical scar. Therefore, Codes 7800, 7801, and 7802 will not be further discussed. Code 7805 provides that any disabling effects not considered in a rating provided under Codes 7800-7804 can be considered under another appropriate Code. The Veteran had a VA examination in August 2013, wherein the examiner noted a painful superficial and linear surgical scar located on the left wrist which measured 10 centimeters in length by 0.3 centimeter in width. The exam showed no ulcerations or adherence. The examiner noted that the scar is painful, but not unstable. The scar did not result in a limitation of function. A higher evaluation of 20 percent is not warranted unless there are three or four painful or unstable scars or if at least one or two painful or unstable scars with at least one scar being both painful and unstable. The Veteran has only one scar which is painful. As he only has one painful scar, an evaluation in excess of 10 percent is not appropriate. Regarding evaluation under Code 7805, as discussed above, the Veteran is already receiving a separate 20 percent rating under Code 8515 for moderate incomplete paralysis of the median nerve as a disabling effect of the scarring; further, as discussed below, he is now in receipt of a separate 10 percent rating for left wrist tenosynovitis. The record does not reflect that the Veteran has any other limitation of function or disabling effects not contemplated by this separate rating. The Board has considered whether any staged rating is appropriate for the assigned rating discussed above. The Board has found that evidence regarding the level of disability for the scarring of the left wrist is consistent with the assigned rating for the entire relevant time period here on appeal. There is no indication of any significant increase or decrease in symptoms of the scarring at any time during the appeal period that would warrant a higher rating. Accordingly, a staged rating is not warranted. Fenderson, 12 Vet. App. at 126. Therefore, a 10 percent evaluation based on one painful scar of the left wrist is most appropriate and entitlement to a rating in excess of 10 percent for a scar of the left wrist is denied. The Veteran has not 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). CUE The Veteran has made allegations of CUE in a prior final rating decision in September 1992 which, in pertinent part, granted service connection for a left wrist disability, and assigned an initial 20 percent disability rating. Previous determinations that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a). The Court has provided a three-part test to determine if there was CUE in a prior decision, as follows: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). See also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (affirming that CUE must be outcome determinative). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43 (1993), citing Russell, 3 Vet. App. at 313-14. A claim that the evidence was not properly weighed or evaluated cannot constitute CUE, and the allegation of CUE must specifically state what error occurred and how the outcome would have been manifestly different. Where a claimant fails to reasonably raise a CUE claim as set forth above, there is no requirement to address the merits of the issue. Fugo, 6 Vet. App. at 45. In other words, if the error alleged is not the type of error that, if true, would be CUE on its face; or if the claimant is only asserting disagreement with how the RO evaluated the facts before it; or if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist; or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a manifestly different result, then the claim should be denied or the appeal to the Board dismissed. Simmons v. Principi, 17 Vet. App. 104 (2003). In the September 1992 rating decision, the RO, in pertinent part, granted service connection and assigned an initial 20 percent disability rating for left wrist status post carpal tunnel release with limited motion and median nerve neuropathy under 38 C.F.R. Part 4, Code 8515. In doing so, the RO noted that service records showed that the Veteran was hospitalized following complaints, of two days duration of pain and swelling in the left wrist. He was diagnosed as having acute carpal tunnel syndrome with septic arthritis. The RO also noted the May 1992 VA general, joint, and neurological examinations. The Veteran did not appeal the September 1992 rating decision and it became final. 38 U.S.C.A. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). He now contends that the September 1992 rating decision is clearly erroneous in failing to assign an initial rating in excess of the 20 percent for the left wrist disability. He contends that evidence was not considered in the evaluation for his left wrist condition. Indeed he states that reports from two particular physicians were not considered in the evaluation for his left wrist carpal tunnel syndrome. Furthermore, he notes that had these reports been considered, a higher evaluation would have been warranted/assigned. The Board observes that in the September 1992 rating decision, service connection was established for status post carpal tunnel release, with limited motion and median nerve neuropathy of the left wrist/hand, and the evaluation was based on objective evidence from the VA examinations dated May 4, 1992 and May 20, 1992. The physicians whose reports the Veteran contends were not considered were in fact the VA examiners who provided the reports the RO considered in the rating decision dated September 21, 1992. Their objective findings were used in the evaluation of his status post carpal tunnel release, with limited motion and median nerve neuropathy of the left wrist/hand in the September 1992 rating decision. In support of his claim, the Veteran also provided evidence in the form of VA treatment records from San Diego dated November 16, 1992 and December 15, 1992. Although this evidence was not identified in the September 1992 rating decision, the evidence does not provide objective evidence to warrant a higher evaluation for the left wrist disability. Indeed, these two records reiterate findings from the May 1992 VA examinations done 6 months earlier. The records document no increase in severity. The evidence of record shows that the September 1992 rating decision was not clearly and mistakably erroneous. Again, although the Veteran contends that medical reports from two VA physicians were not considered in the evaluation for his left wrist disability, the rating decision itself was correctly based on the evidence of record, which included the reports from these two physicians. In short, the Board concludes that the September 1992 rating decision constituted a reasonable exercise of rating judgment under the law as it then existed (the Board notes that the rating criteria for Code 8515 in existence in 1992 is the same criteria currently). That the Veteran would have the Board weigh the evidence differently, or even if the Board would have decided differently, does not create a basis for finding CUE. The September 1992 judgment regarding the assignment of the 20 percent disability rating for left wrist disability will not be disturbed now by finding CUE. The Board notes that the determinative question in this case is not whether it would have been reasonable for an adjudicator to have assigned a 20 percent evaluation for the Veteran's service-connected left wrist disability in September 1992. Rather, the question is whether, given the law extant at the time and the evidence then of record, it is absolutely clear that a different result should have ensued. Here, for the reasons stated above, the Board must answer that question in the negative. In summary, a disagreement with how the evidence was weighed does not rise to the level of CUE. The facts as they were known to VA when the rating decision was issued were before the RO, and there is no indication that the decision in question failed to correctly apply the statutory and regulatory provisions extant at that time. Thus, the September 1992 rating decision was not the product of CUE, and the appeal is denied. Earlier effective date The Veteran seeks entitlement to an effective date prior to September 13, 2012 for a separate 10 percent rating for his service-connected left wrist disability, diagnosed as tenosynovitis. Generally, the effective date of an award of increased compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In a September 2012 statement, the Veteran requested an increased rating for his left wrist disability. He indicated that he experiences painful left wrist motion. As noted, the Veteran has a protected 20 percent rating for left wrist disability effective from February 7, 1992. At the time, the left wrist disability was characterized as status post carpal tunnel release with limited motion and median nerve neuropathy. The service treatment records show the Veteran was diagnosed as having acute carpal tunnel syndrome with septic arthritis; as well as r/o tenosynovitis of the left hand. In support of his September 2012 claim, he submitted a July 2013 statement from Dr. Perlman that indicates the Veteran has two separate diagnoses that affects his left wrist. Indeed, Dr. Perlman states that it is clear that the Veteran has a left carpal tunnel syndrome with recurrent compression of the median nerve and a flexor tenosynovitis that is possible bacterial in nature. During August 2013 VA wrist examination, the Veteran reported pain and weakness of the left wrist and hand. It was noted that he is right hand dominant. It is noted that during flare ups of the left wrist, he has additional limitation and decrease of range of motion of 20 percent due mainly to pain, and lesser extent to the weakness and fatigability. Left wrist palmar flexion was reported as 80/80 degrees (actual/normal) with pain starting at 20 degrees. Left wrist dorsiflexion was 70/70 degrees with pain starting at 20 degrees. Radial deviation was 20/20 degrees with pain starting at 10 degrees and ulnar deviation was 45/45 degrees with pain starting at 15 degrees. There was no change in range of motion with repetitive motion testing. Repetitive motion testing revealed weakened movement, excess fatigability, and pain on movement. VA exam reported localized tenderness and/or pain on palpation of the left wrist. Muscle strength testing was 3/5 for left wrist flexion and extension. On December 2013 VA medical opinion, the examiner notes that after a review of the treatment records and medical literature, the Veteran was diagnosed to have tenosynovitis of the left wrist which involves inflammation of the tendon and tendon sheath with the pain and swelling on the dorsum of the left wrist. He concluded that the painful motion of the left wrist is as likely as not due to flexor tenosynovitis of the left wrist. Carpal tunnel syndrome of the left wrist causes numbness and tingling sensation of the left wrist and fingers of the left hand of the median nerve distribution. Based on the foregoing, a basis for an earlier effective date for establishing service connection has not been presented. The Veteran's application or benefits was received in September 2012, and subsequent to that a separate wrist impairment was identified, and service connection established for it from the date of claim. As the law provides the date of claim is to serve as the effective date for an award of service connection, and this was the date the RO used, and earlier dated is not permitted. ORDER A rating in excess of 20 percent for status post carpal tunnel release, with median nerve neuropathy, left (non-dominant) wrist/hand is denied. A rating in excess of 10 percent for painful surgical scar, left wrist is denied. The September 1992 rating decision which granted service connection for left wrist disability and assigned a 20 percent rating did not contain CUE, and the appeal is denied. An effective date prior to September 13, 2012, for the award of a separate10 percent disability rating for left wrist tenosynovitis is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs