Citation Nr: 18148901 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-40 759 DATE: November 9, 2018 ORDER On and after November 1, 2013, entitlement to an initial disability rating of 20 percent for left carpal tunnel syndrome is granted. On and after November 1, 2013, entitlement to an initial disability rating of 30 percent for right carpal tunnel syndrome is granted. FINDINGS OF FACT 1. On and after November 1, 2013, the Veteran’s left carpal tunnel syndrome was manifested by symptoms most closely approximating moderate incomplete paralysis of the median nerve, but not severe incomplete paralysis. 2. On and after November 1, 2013, the Veteran’s right carpal tunnel syndrome was manifested by symptoms most closely approximating moderate incomplete paralysis of the median nerve, but not severe incomplete paralysis. CONCLUSIONS OF LAW 1. On and after November 1, 2013, the criteria for an initial disability rating of 20 percent for left carpal tunnel syndrome have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515. 2. On and after November 1, 2013, the criteria for an initial disability rating of 30 percent for right carpal tunnel syndrome have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from October 1990 to October 31, 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. The February 2014 rating decision granted entitlement to left and right carpal tunnel syndrome and assigned an initial noncompensable evaluation for each disability, effective from November 1, 2013. During the pendency of the appeal, a June 2016 Decision Review Officer (DRO) decision increased the disability rating for both disabilities to 10 percent effective from June 15, 2016 based on the findings from a June 15, 2016 VA examination. Although the rating codesheet associated with the DRO decision stated that the effective date for the 10 percent rating for left carpal tunnel syndrome was June 5, 2016, it is clear from the June 2016 statement of the case that this was a clerical error. As the assigned evaluations are less than the maximum available rating, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an initial compensable evaluation for left carpal tunnel syndrome prior to June 15, 2016, and a disability rating in excess of 10 percent on and after June 15, 2016; and entitlement to an initial compensable evaluation for right carpal tunnel syndrome prior to June 15, 2016, and a disability rating in excess of 10 percent on and after June 15, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was 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 be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran's left and right carpal tunnel syndrome are rated under Diagnostic Code 8515, 38 C.F.R. § 4.124a, for paralysis of the median nerve. This diagnostic code provides ratings for both the major and the minor upper extremity. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. In this case, the record reflects that the Veteran is dominant in the right hand. See June 2016 VA examination. Therefore, the Board finds that the Veteran's left upper extremity is the minor, i.e., non-dominant side. When there is mild incomplete paralysis of the median nerve, Diagnostic Code 8515 allows for a 10 percent rating for both the major and minor upper extremity. Moderate incomplete paralysis of the median nerve warrants a 30 percent rating in the major upper extremity, and a 20 percent rating in the minor upper extremity. Severe incomplete paralysis of the median nerve is awarded a 50 percent rating for the major upper extremity, and a 40 percent rating for the minor upper extremity. 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 thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and effective, absence of flexion of index finger and feeble flexion of middle finger; cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances; is granted a 70 percent rating for the major upper extremity, and a 60 percent rating for the minor upper extremity. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Veteran filed her initial serve connection claim for bilateral carpal tunnel syndrome in June 2013 prior to her October 31, 2013 discharge as part of VA’s Benefits Delivery at Discharge (BDD) program. The Veteran attributed the disorder to long hours of computer work. To reduce pain associated with the bilateral carpal tunnel syndrome, she reported occasionally needing to apply ice, stretch, and routinely needing to change positions. Her hands became numb if she held onto something for too long, such as handle bars on a bike. In September 2013, a VA examination was conducted in relation to her claim. The examiner noted that in 2005, the Veteran began having pain in her distal forearms that radiated up to her hand, specifically her first through third fingers. The symptoms were more significant on the right than the left. Electromyography (EMG) studies performed in May 2007 documented bilateral carpal tunnel syndrome, and the Veteran was given night braces to wear. Although the Veteran felt that it was mildly inconvenient to wear the braces at night, she found them to be helpful. The examiner stated that at the time of the examination, her bilateral carpal tunnel syndrome was asymptomatic. The objective examination revealed that there was no redness, swelling, or tenderness of any aspect of the left or right forearm, hand, or fingers. There was also no motor or sensory loss in either upper extremity. Tinel signs were negative bilaterally. The examiner also included the results of range of motion testing for the left and right wrists. The Veteran’s radial deviation, ulnar deviation, forearm supination, and forearm pronation were within normal limits bilaterally. The Veteran’s dorsiflexion (extension) was 70 degrees bilaterally in normal, active, and passive motion; and after repetitive use testing. Regarding the palmar flexion, the left wrist had 90 degrees of normal motion, 70 degrees of active motion, 75 degrees of passive motion, and 70 degrees following repetitive use testing. The right wrist had 90 degrees of normal motion, 70 degrees of active motion, 80 degrees of passive motion, and 70 degrees after three repetitions. For both the dorsiflexion and palmar flexion, the examiner commented that the Veteran could experience pain in the left and right wrist that was a 5 out of 10 with computer work, as well as numbness throughout her hands. In September 2014, a private treatment record noted the results from an EMG/nerve conduction study of the bilateral upper extremities. The history portion of the report stated that the Veteran had a stiffness sensation of the posterior neck as well as numbness, pain, and tingling of the upper limbs. The symptoms began more than four months before the visit, and they worse in the right hand. The paresthesias sometimes woke the Veteran at night. The Veteran’s use of a wrist splint had not helped. The impression stated that the study was abnormal. There were bilateral, chronic, moderate, mixed (sensory-motor), predominantly demyelinating, median entrapment neuropathies at the wrists (carpal tunnel syndrome). The right upper extremity was worse than the left. In her October 2014 notice of disagreement, the Veteran asserted that her carpal tunnel was moderate in severity as it now impacted her arms. She described having lost significant sensation in her hands, but also reported that they were very painful when performing routine chores. The Veteran reported experiencing difficulty opening jars and bottles. She was also unable to type for significant amounts of time. Her right hand pain could become so severe that braces, ice, and medication did not alleviate the pain. The Veteran indicated that she needed to refrain from using her right hand and arm for days at a time to relieve this level of pain. Although her left hand was less painful than her right, it was worsening due to the extra work she performed with her left hand and arm. The record reflects that the Veteran later underwent a right carpal tunnel release surgery in November 2014. See November 2014 medical receipt; June 2016 VA examination. Another VA examination to evaluate the Veteran’s bilateral carpal tunnel syndrome was conducted on June 15, 2016. Regarding her right carpal tunnel syndrome, the Veteran informed the examiner that she experienced pain in her right forearm and palm that extended up to her shoulder. She was dropping things unintentionally and waking up at night with right arm numbness. The Veteran did not have symptoms of numbness during the day or with use. Moving her fingers aggravated the pain. The examiner noted that the November 2014 right carpal tunnel syndrome release had relieved the Veteran’s symptoms for approximately one year before they began to return. Regarding her left carpal tunnel syndrome, the Veteran had pain in the left forearm and hand. In addition, constant numbness was present in the distal aspect of her left thumb. These symptoms were aggravated with gripping, typing, and shooting. The Veteran was not receiving any medical care for her bilateral carpal tunnel syndrome. She reported being functionally limited to 2 hours of typing, painting, or prolonged gripping. In the examination report, the examiner marked that the Veteran had moderate intermittent pain (usually dull) in the bilateral upper extremities, and mild numbness and paresthesias and/or dysesthesias on the left. The right upper extremity did not have symptoms of numbness or paresthesias and/or dysesthesias. Muscle strength testing yielded normal results bilaterally, without any evidence of muscle atrophy. The Veteran’s bilateral upper extremity reflexes were also normal. The Veteran’s response to sensory testing was normal bilaterally in the shoulder area (C65) and inner/outer forearm (C6/T1). Although the sensory functioning of the hand/fingers (C6-8) was normal on the right, it was decreased on the left. The examiner noted that the palmar aspect of the left thumb distal to the proximal interphalangeal joint had decreased sensation to light touch. The Veteran did not have trophic changes. The Phalen’s sign test was negative bilaterally. The Tinel’s sign was negative on the right and positive on the left. The examiner determined that the Veteran’s right and left upper extremities had incomplete paralysis of the median nerve that was of mild severity. The Veteran’s functioning was not so diminished that an amputation with prosthesis would equally serve the Veteran. In terms of assistive devices, the Veteran was regularly using bilateral wrist splints for her carpal tunnel syndrome. The examiner also reported that the Veteran had a related scar. However, it was not painful or unstable, did not have a total area equal to or greater than 39 square centimeters (6 square inches), and was not located on the head, face, or neck. The examiner noted that he was unable to measure the scar as it had faded. In the Veteran’s August 2016 VA Form 9, she stated that her carpal tunnel syndrome dramatically increased within four months of her retirement. She asserted that this increase was evidenced by the September 2014 findings from the EMG/nerve conduction study. As a result of the increased symptoms, she required the right carpal tunnel release in November 2014. She noted that her right hand improved due to surgery, and her left hand also improved as she needed to use it less often. In contrast the June 2016 VA examiner’s report indicating that the surgery relieved the Veteran’s symptoms for approximately one year, the Veteran asserted that her level of symptoms following the surgery were reflected in the June 2016 VA examination report. Based on the foregoing, the Board finds that the Veteran’s symptoms more closely approximate moderate incomplete paralysis of the median nerve in the left and right upper extremity throughout the rating period on appeal. Despite the September 2013 VA examiner’s statement that the Veteran was asymptomatic during the examination, it was also noted in the report that the Veteran could experience moderate symptoms of pain bilaterally as well as numbness with computer work. This report is also consistent with the Veteran’s earlier description of her symptoms in June 2013. The Board notes the Veteran’s report that her symptoms underwent a dramatic increase approximately fourth months after her October 31, 2013 discharge, and this increase was demonstrated by the September 2014 EMG/nerve conduction study. This record indicated that in addition to pain and numbness, the Veteran experienced tingling, her symptoms were worse in the right upper extremity than the left upper extremity, and her wrist splint was no longer helpful. Although the Veteran also reported in October 2014 that her loss of sensory functioning had been significant, she sometimes had to rest her right hand for days at a time, and it was difficult to open jars and bottles, the September 2014 EMG/nerve conduction study’s objective findings reflect that the severity of the Veteran’s median entrapment neuropathies at the wrists (carpal tunnel syndrome) was no more than moderate. The Board does not find that the Veteran’s descriptions suggest that her symptoms were more severe than was indicated by the study’s conclusions. In addition, the fact that the Veteran later underwent a right carpal tunnel release surgery in November 2014 reflects that she sought to treat the moderate symptoms noted in September and October of 2014. There is no other evidence of record prior to the November 2014 surgery to suggest otherwise. The subsequent June 2016 VA examination report noted that the Veteran experienced moderate intermittent pain bilaterally that was usually dull. Although the examiner determined that the Veteran had no more than mild incomplete paralysis of the median nerve bilaterally, the Board finds that her moderate level of intermittent pain bilaterally paints a disability picture that is more consistent with the ratings assigned for moderate incomplete paralysis of the median nerve. The Board acknowledges the discrepancy in the record regarding the Veteran’s symptoms after the November 2014 right carpal tunnel release. The Veteran’s August 2016 report indicates that although her symptoms improved, the post-surgery level of severity was represented by the findings in the June 2016 VA examination. As noted above, those findings most closely approximate moderate incomplete paralysis. The examiner, however, indicated that the symptoms initially improved before worsening in approximately November 2015. As the June 2016 examiner stated that records from the surgery were unavailable, it appears that this documented history was based on the Veteran’s reports. Thus, the Veteran’s August 2016 statement serves as a clarification to the account provided to the VA examiner. Resolving all doubt in favor of the Veteran, the Board finds her reported history to be credible. However, the Board does not find that the evidence from this period demonstrates that the Veteran experienced severe incomplete paralysis. No objective deficiencies in sensory or motor functioning were suggested by the September 2013 VA examination. As noted above, the September 2014 EMG/nerve conduction study also indicated that the Veteran’s motor-sensory impairment was no greater than moderate in its severity. Although the June 2016 VA examiner noted the Veteran’s report that she was dropping things unintentionally, the objective findings from this examination reflect that she retained full muscle strength without any atrophy. The examination further indicated that the Veteran had normal reflexes and largely normal sensory functioning in response to testing. Although the sensation in the left thumb distal to the proximal interphalangeal joint was decreased, it was not absent. As previously noted, the descriptions of the Veteran’s numbness, pain, and paresthesias and/or dysesthesias in the evidence from this period were also not reflective of severe symptomatology. The Board does not find that the VA examinations or the other evidence of record from this period more nearly approximate severe incomplete paralysis of the median nerve for the left or right upper extremity. Consequently, a 20 percent rating for left carpal tunnel syndrome and a 30 percent rating for right carpal tunnel syndrome, but no higher, should be awarded for the entire appeal period. 38 U.S.C. § 5107(b). The Board has also considered whether a separate compensable rating is warranted for the scar noted on the June 2016 VA examination. However, the examination report does not reflect that the Veteran had a scar of the severity and/or size to warrant a separate compensable rating under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Based on this evidence, a compensable rating for the scar is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel