Citation Nr: 18147624 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 10-13 955 DATE: November 5, 2018 ORDER 1. Entitlement to an increased disability rating in excess of 10 percent for left carpal tunnel syndrome on an extraschedular basis is denied. 2. Entitlement to an increased disability rating in excess of 10 percent for right carpal tunnel syndrome on an extraschedular basis is denied. FINDING OF FACT The Veteran’s symptoms of bilateral carpal tunnel syndrome are contemplated by the schedular disability ratings assigned, and an extraschedular rating based on the combined effect of multiple service-connected disabilities is not warranted. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for left carpal tunnel syndrome on an extraschedular basis have not been met. 38 U.S.C. § 1155, 5017 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8515 (2017). 2. The criteria for an increased disability rating in excess of 10 percent for right carpal tunnel syndrome on an extraschedular basis have not been met. 38 U.S.C. § 1155, 5017 (2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8515 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from October 1986 to August 2007. To review the relevant procedural history of this matter, in August 2015, the Board granted separate 10 percent disability ratings for left and right carpal tunnel syndrome, but denied evaluations in excess of 10 percent, after which the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court affirmed the Board’s conclusion that schedular disability ratings in excess of 10 percent were not warranted for bilateral carpal tunnel syndrome, but remanded the issue of whether referral for extraschedular rating for the Veteran’s service-connected disabilities on a collective basis was warranted. The Veteran’s appeal was most recently remanded by the Board in June 2017, and the requested development has since been completed. As such, the appeal is properly returned to the Board for adjudication. 1. Entitlement to an increased disability rating in excess of 10 percent for left carpal tunnel syndrome on an extraschedular basis. 2. Entitlement to an increased disability rating in excess of 10 percent for right carpal tunnel syndrome on an extraschedular basis. As noted above, in November 2016 the Court remanded the issue of whether referral for extraschedular rating for the Veteran’s service-connected disabilities on a collective basis was warranted based upon the previous holding by the United States Court of Appeals for the Federal Circuit (Federal Circuit) that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The matter was then remanded by the Board in June 2017, and in March 2018, the matter was referred to the VA Director of Compensation Service (Director) for a determination as to whether the Veteran was entitled to a combined effects extraschedular rating based on the collective impact of her service-connected disabilities. Id. That same month, the Director denied a combined effects extraschedular rating based upon the collective impact of the Veteran’s service-connected disabilities. The Director noted that the evidence did not show an exceptional or unusual disability picture that rendered application of schedular rating criteria impractical and that each of the symptoms asserted by the Veteran as contributing to her impairment had been expressly considered in the schedular disability ratings assigned for those disabilities; moreover, each of the Veteran’s service connected disabilities had been evaluated in accordance with the criteria provided by the rating schedule and those schedular ratings had either been accepted by the Veteran or affirmed on appeal. As such, the Director concluded that the evidence did not show that the Veteran’s service-connected disabilities have a collective impact that is not contemplated by the individual ratings for each disability, and as such, a combined effects extraschedular rating was denied. Additionally, the Board notes that on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities. See Final Rule, 82 Fed. Reg. 57830, 57,835 (Dec. 8, 2017). Significantly, this revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018 or that are pending before VA, the Court, or the Federal Circuit on January 8, 2018. The Veteran’s benefits claim was pending before VA on January 8, 2018. More recently, in September 2018, the Court issued a panel decision holding that VA’s revision to 38 C.F.R. § 3.321(b) eliminating extraschedular consideration on the basis of collective impact of multiple service-connected disabilities did not have an impermissible retroactive effect and applied to all cases pending before VA and the Court on the effective date of the final rule. See Thurlow v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1225 (September 12, 2018). In conclusion, and based upon the above, the Board concludes that the Veteran’s assertion that she is entitled to an extraschedular rating based on the collective impact of multiple service-connected disabilities is no longer supported and therefore her appeal must be denied as a matter of law. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel