Citation Nr: 1804546 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-09 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 30 percent for carpal tunnel syndrome (CTS) of the right upper extremity. 2. Entitlement to a rating in excess of 20 percent for CTS of the left upper extremity. ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to February 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled for a Board hearing in October 2016 which he failed to attend, as such the request for a hearing was determined to be withdrawn. The issue of entitlement to an increased rating for generalized anxiety disorder had also been appealed by the Veteran. However, in a December 2013 rating decision, the RO granted a 100 percent disability rating for the entire rating period on appeal. Moreover, the Veteran has been awarded special monthly compensation under 38 U.S.C. 1114 (s). The Board finds that this is a full grant of the benefit sought on appeal. Further, the Veteran has not disagreed with the rating or effective date assigned; as such, the issue is no longer in appellate status. The Board further notes that a substantive appeal (VA Form 9) regarding the issues on appeal was received at the RO over 60 days after the issuance of a statement of the case in January 2014. However, the Board finds that the filing of a timely substantive appeal was waived when the RO certified the appeal to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes action to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal). FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. Severe incomplete paralysis of the right and left median nerves is not demonstrated or approximated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for CTS of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8515 (2017). 2. The criteria for a rating in excess of 20 percent for CTS of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, the Veteran has not 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 a duty to assist argument). Disability Ratings-Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). The terms mild, moderate, and severe are not defined in the Rating Schedule. 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. Use of those descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. Rating Analysis for CTS Disabilities The Veteran essentially maintains that his right and left CTS disabilities are more severe than what is contemplated by the currently assigned ratings. The Veteran's CTS of the right and left upper extremities have been assigned 30 and 20 percent ratings, respectively, under Diagnostic Codes 8599-8515. 38 C.F.R. § 4.124a. Thus, the disability had been rated by analogy under Code 8515 for disability of the median nerve. 38 C.F.R. §§ 4.20, 4.27; see Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010). Under Code 8515 for disability of the median nerve, for moderate incomplete paralysis, a 30 percent rating is assigned for the major hand and a 20 percent rating is assigned for the minor hand. For severe incomplete paralysis, a 50 percent rating is assigned for the major hand and a 40 percent rating is assigned for the minor hand. A 70 percent rating is assigned for complete paralysis of the median nerve on the major side with such manifestations such as the hand inclined to the ulnar side; the index and middle fingers more extended than normal; considerable atrophy of the muscles of the thenar eminence; the thumb in the plane of the hand (ape hand); pronation incomplete and defective; absence of flexion of index finger and feeble flexion of middle finger; an inability to make a fist; the index and middle fingers remain extended; an inability to flex the distal phalanx of thumb; defective opposition and abduction of the thumb, at right angles to the palm; weakened wrist flexion; and pain with trophic disturbances. Complete paralysis of the minor hand is rated as 60 percent disabling. 38 C.F.R. § 4.124a. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Right- or left-handedness for the purpose of a dominant-side disability rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The evidence shows that the Veteran's right hand is dominant. The evidence includes an April 2010 VA examination. During the evaluation, the Veteran reported symptoms of neuritis and neuralgia. He also reported that his symptoms had become more frequent and more severe. The Veteran reported taking medication and used wrist splints. The examiner provided a diagnosis of moderate to severe carpal tunnel syndrome, bilaterally. However, in the body of the examination, the examiner indicated that he characterized the Veteran's CTS as "moderately impairing." Further, an accompanying April 2010 electromyography (EMG) demonstrated a "mild" bilateral median neuropathy at the wrist. VA treatment records also show continued complaints of numbness and tingling in the bilateral upper extremities. Upon review of all evidence of record, the Board finds that the Veteran's right and left CTS have not more nearly approximated severe incomplete paralysis of the median nerve. As discussed above, the Veteran has reported symptoms of numbness and tingling in the upper extremities; however, the April 2010 EMG specifically indicated that the Veteran had "mild" bilateral median neuropathy at the wrist. Further, the April 2010 VA examiner characterized the Veteran's CTS as "moderately impairing." There is no evidence showing that the nerve impairment has reached the level of severe incomplete paralysis of the median nerves. For these reasons, the Board finds that ratings in excess of 30 and 20 percent are not warranted for right and left CTS under Diagnostic Code 8515. In reaching this conclusion, the Board acknowledges the Veteran's belief that the neurologic symptoms in his upper extremities are more severe than that compensated by the assigned ratings. The Board finds that the Veteran is certainly competent to discuss the severity of his symptomatology and report his observable symptoms. However, in this case, the Veteran does not have the training or expertise needed to opine as to whether his disabilities more closely approximate the criteria for a higher rating. The Board gives more weight to the specific objective findings (such as the EMG results) obtained through specialized testing and physical examinations. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In this case for the reasons discussed below, the Board finds that any claim of entitlement to a TDIU is moot. The Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114 (s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. The Board concludes that the facts of Bradley are sufficiently distinguishable from the facts of this case such that the holding in Bradley is inapplicable and the Veteran's TDIU claim is in fact moot. Specifically, the Veteran has already been granted a 100 percent disability rating for his psychiatric disability (generalized anxiety disorder) and has been granted an award of SMC for the entire rating period on appeal based on additional service-connected disabilities independently ratable at 60 percent or more. As the Veteran has already been awarded SMC and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114 (s), the holding in Bradley is not applicable in this case. Therefore, any TDIU claim is moot. Finally, 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, 69-70 (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). ORDER A rating in excess of 30 percent for CTS of the right upper extremity is denied. A rating in excess of 20 percent for CTS of the left upper extremity is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs