Citation Nr: 18149962 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-28 995 DATE: November 14, 2018 ORDER Entitlement to an initial rating of 30 percent prior to February 4, 2015, for left (major) wrist carpal tunnel syndrome (CTS), is granted. Entitlement to an initial rating in excess of 30 percent from February 4, 2015, for left (major) wrist carpal tunnel syndrome (CTS), is denied. Entitlement to an initial rating of 20 percent prior to February 4, 2015, for right (minor) wrist carpal tunnel syndrome (CTS), is granted. Entitlement to an initial rating in excess of 20 percent from February 4, 2015, for right (minor) wrist carpal tunnel syndrome (CTS), is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Given the right finger amputation, the left hand is the Veteran’s dominant upper extremity. 2. During the period on appeal, the Veteran’s left and right wrist CTS was productive of moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for left (major) CTS are met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.14, 4.124, 4.124a, Diagnostic Code 8515 (2017). 2. The criteria for an initial rating of 20 percent, but no higher, for right (minor) CTS are met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.14, 4.124, 4.124a, Diagnostic Code 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to April 1982. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 and December 2010 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The January 2010 rating decision, in pertinent part, granted service connection for bilateral CTS and assigned a 10 percent disability rating for each wrist. In June 2010, the Veteran filed a notice of disagreement (NOD) disputing the 10 percent rating assignment and reasonably raising a claim for TDIU. In August 2010, the Veteran completed the required VA Form 21-8940. A December 2010 rating decision continued the 10 percent initial rating assigned for each of the Veteran’s wrists and denied the Veteran’s TDIU claim. The Veteran filed an NOD as to the denial of entitlement to TDIU, and the RO addressed that issue (among others) in a September 2011 statement of the case (SOC). The Veteran filed a Substantive Appeal (VA Form 9) in October 2011. Subsequently, a SOC was issued in January 2012 addressing the issue of increased ratings for the bilateral CTS. The Veteran filed a second Substantive Appeal (VA Form 9) in February 2012. The claims for increased rating for the bilateral CTS were remanded in October 2014. Thereafter, an August 2015 rating decision assigned increased evaluations of 30 percent for left wrist CTS and 20 percent for right wrist CTS, effective February 4, 2015. A supplemental SOC was then issued in August 2015. In February 2016, the claims for increased ratings for bilateral CTS, along with the issue of entitlement to a TDIU, were remanded. A supplemental SOC was issued in October 2016. The claims were again remanded in May 2017. Most recently, a supplemental SOC was issued in June 2018. The Board notes that the May 2017 remand instructions directed the RO to undertake appropriate efforts to verify a current address for the Veteran. Multiple attempts were made to reach him by phone and mail. Unfortunately, the RO’s attempts to verify the Veteran’s current address were unsuccessful. A records search was run and contact was made with the Miami-Dade Corrections Department, who verified that he was released from incarceration in October 2017. VA treatment records show that he was seen in December 2017 but failed to appear for an appointment in February 2018. The Board finds that no further attempts to reach the Veteran are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992) (holding that VA’s “‘duty to assist is not always a one-way street’; nor is it a blind alley,” quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). Increased Rating The Board has reviewed the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence as appropriate and focus specifically on what the evidence shows or fails to show as to the claims. Rating Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board must consider entitlement to “staged” ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14, which prohibits “[t]he evaluation of the same disability under various diagnoses.” See Brady v. Brown, 4 Vet. App. 203, 206 (1993); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another). The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Notwithstanding the duty to assist, it remains a claimant’s responsibility to submit evidence to support his or her claim. See 38 U.S.C. § 5107(a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed.Cir.2009). When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2017). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8515 provides the rating criteria for paralysis of the nerves of the median nerve. A 10 percent evaluation is warranted for incomplete paralysis of the median nerve that is mild. A 20 percent evaluation is warranted for incomplete paralysis of the minor extremity median nerve that is moderate. A 30 percent evaluation is warranted for incomplete paralysis of the major extremity median nerve that is moderate. A 40 percent evaluation is warranted for incomplete paralysis of the minor extremity median nerve that is severe. A 50 percent evaluation is warranted for incomplete paralysis of the major extremity median nerve that is severe. A 60 percent evaluation is warranted for complete paralysis of the minor extremity median nerve where 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 (ape hand); pronation incomplete and defective, 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 thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. A 70 percent evaluation is warranted for complete paralysis of the major extremity median nerve where 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 (ape hand); pronation incomplete and defective, 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 thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a. The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Factual Background In February 2009, the Veteran submitted a claim seeking entitlement to service connection for a bilateral wrist condition. In March 2009, VA treatment records reflect the Veteran’s complaints of numbness on the ulnar side of both wrists. He reported difficulty typing. He was issued wrist control splints and referred to the hand clinic. The Veteran underwent a VA examination in conjunction with his claim in September 2009. He described gradual onset of bilateral wrist pain, stiffness, and weakness with radiation of symptoms to the bilateral fingers. A rheumatoid arthritis workup was negative. He reported a diagnosis from VA of CTS, treated with a wrist control splint on the left. The Veteran denied symptoms of giving way, incoordination, and instability but endorsed pain, stiffness, and weakness. He also reported numbness and severe daily flare-ups. Typing, extreme flexion and extension, and lifting and carrying caused flare-ups. Physical examination revealed decreased grip strength in the left hand and decreased light touch in the left-hand ring finger. Weakness, fatigue, and pain were also noted. The examiner diagnosed bilateral CTS, with mild impact on dressing and grooming, moderate impact on chores, and severe impact on exercise and recreation. In January 2010, a rating decision granted entitlement to service connection for CTS, with the right (dominant) extremity rated at 10 percent and the left (non-dominant) extremity rated at 10 percent, effective February 27, 2009. In June 2010, the Veteran submitted a NOD, seeking an increased evaluation for his service-connected carpal tunnel syndrome. He stated that he was unable to work at all due to the pain and loss of motion. The Veteran underwent a general medical VA examination in October 2010. The examiner noted paralysis of the median nerve, with a stable course since onset and no current treatment. No flare-ups were indicated. A decrease in overall dexterity and strength in the hand was reported. Muscle strength in the hands was normal. No atrophy, spasm, or other muscle abnormality was noted. The examiner described all four extremities as normal. No abnormalities were noted upon sensory examination. The Veteran denied dysesthesias. He reported that his joints swelled when he used his hands repetitively. He had problems using tools like a screwdriver, knife, or scissors. He reported paresthesia bilaterally. Severe flare-ups were reported weekly. The examiner noted that the Veteran was taking tramadol with good response. The right hand was indicated as dominant. The examiner documented that sensation was intact in both hands with strong motor strength. He opined that the Veteran could work in a job that did not require skills with both hands. A December 2010 rating decision continued the 10 percent evaluations for left and right wrist CTS. In July 2013, VA treatment records documented grossly intact strength in the upper extremities. Records from August 2013 reflect the Veteran’s report of nearly continuous tingling from the right shoulder to hand, with rare tingling in the left upper extremity. When physically tested, he indicated that sharp and dull sensation was equal and intact in the bilateral upper extremities. In April 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. He described working as a meat cutter and screen printer, but having trouble operating the machines due to pain in his hands. Typing and picking things up was also difficult with the limitations of CTS. He reported that VA treatment options included medication and surgery, along with a brace. The Veteran reported pain when moving his wrists throughout the day, in addition to locking up when trying certain repetitive movements. The Veteran underwent further VA examination in February 2015. The examiner noted a diagnosis of CTS since 1979. He acknowledged the remand instructions and the Veteran’s reports of increased bilateral wrist and left-hand achiness, not relieved by wrist splints or medication, as well as increased left-hand fatigue with sustained grip. The examiner stated that the Veteran did not have a wrist joint condition or diagnosis at the time of the examination. Due to the accident resulting in loss of right hand fingers, the Veteran had become left hand dominant. The examiner recorded no constant pain, mild intermittent pain, no paresthesias and/or dysesthesias, and mild numbness in the bilateral upper extremities. Normal muscle strength and reflexes were measured. No muscle atrophy was present. The examiner reported mild incomplete of the right median nerve and moderate incomplete paralysis of the left median nerve. No other pertinent physical findings or symptoms were recorded. The Veteran reported functional impact including pain interfering with sleep and left-hand fatigue with sustained grip, disrupting his ability to write, type, cut meat, and button his shirt. The examiner reiterated that the joint exam was normal and there was no wrist diagnosis. He indicated that the Veteran was scheduled for EMG testing in March 2015. In March 2015, the Veteran underwent a surgery consultation. He reported left hand dominance due to the right-hand finger amputations. He complained of pain and numbness in his wrists. The physician ordered EMG testing and custom wrist control splints. In July 2015, VA treatment records reflect EMG testing showed bilateral CTS and cubital tunnel syndrome on baseline of peripheral polyneuropathy. The physician stated that it was likely due to diabetes, but also had significant cervical spine pathology. An accompanying note indicated moderate bilateral CTS. An August 2015 rating decision increased the evaluation for right hand CTS to 20 percent and left-hand CTS to 30 percent, effective February 4, 2015. The claims were remanded in February 2016 in order to afford the Veteran a VA joints examination. The Veteran underwent further VA examination in May 2016. The examiner noted the July 2015 EMG testing with evidence of moderate bilateral median neuropathy at wrists as well as left ulnar neuropathy at the elbow and signs suggestive of superimposed mixed peripheral neuropathy. The Veteran reported compliance with nightly use of splints; but stated that he could not wear them all the time during the day as they interfered with his typing. He indicated stable symptoms since the prior VA examination. The examiner indicated that the Veteran was ambidextrous. The examiner recorded no constant pain, mild intermittent pain, mild left paresthesias and/or dysesthesias, and mild left numbness in the bilateral upper extremities. Normal muscle strength was measured, except for grip (0/5 right and 4/5 left) and pinch (0/5 right and 4/5 left). No muscle atrophy was present. Reflexes were measured as normal. Light touch testing revealed decreased response on the left fingers. Right hand and wrist response was absent. The examiner reported mild incomplete paralysis of the left and right median nerve. Mild incomplete paralysis of the ulnar nerve was also indicated. No other pertinent physical findings or symptoms were recorded. A September 2017 VA treatment note indicated that the Veteran’s CTS was stable. 1. Entitlement to an initial rating in excess of 10 percent prior to February 4, 2015, and in excess of 30 percent thereafter for left (major) wrist CTS. The Veteran contends that higher evaluations are warranted for left wrist CTS in excess of the currently assigned 10 percent prior to February 4, 2015, and 30 percent thereafter. After thorough consideration of the evidence of record, the Board finds that the preponderance of the evidence warrants the assignment of a 30 percent rating, but no higher, for left (dominant) wrist CTS for the entire period on appeal. The probative evidence of record reflects that the Veteran’s left wrist CTS has resulted in disability comparable to moderate, incomplete paralysis. Pursuant to Diagnostic Code 8515, the Veteran has moderate, incomplete paralysis of the left upper major extremity, contemplated by a 30 percent rating for the dominant extremity. In so finding, the Board observes the clinical evidence, which indicates that the Veteran was diagnosed with CTS and consistently reported pain in his left wrist. Upon VA examination in September 2009, he reported numbness and severe daily flare-ups. Typing, extreme flexion and extension, and lifting and carrying caused flare-ups. Physical examination revealed decreased grip strength in the left hand and decreased light touch in the left-hand ring finger. Weakness, fatigue, and pain were also noted. The examiner diagnosed bilateral CTS, with mild impact on dressing and grooming, moderate impact on chores, and severe impact on exercise and recreation. The July 2015 EMG testing reflected moderate bilateral median neuropathy at the wrists. Most recently, in May 2016, the Veteran reported mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremities. His muscle strength was measured as 4/5 for grip and pinch. Light touch testing revealed decreased response on the left fingers. The examiner reported mild incomplete paralysis of the left median nerve. The Board also notes that the Veteran has consistently been prescribed and utilized wrist splints for his CTS since 2009. In addition to the medical evidence, the Board has carefully reviewed and considered the lay statements regarding the severity of the Veteran’s service-connected left wrist CTS. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Comprehensive review of the lay and medical evidence reveals that the left wrist CTS more nearly approximates moderate, incomplete paralysis. Accordingly, after affording the Veteran the benefit of the doubt, the Board finds that an initial 30 percent rating is warranted for moderate, incomplete paralysis of the Veteran’s dominant left upper extremity CTS. Severe incomplete paralysis or complete paralysis are not shown by the lay or medical evidence; thus, a higher rating in excess of 30 percent is not warranted. The Board acknowledges the prior remand instructions aimed at obtaining a medical opinion regarding the Veteran’s joint symptoms. However, given the Veteran’s failure to appear for examination or maintain current contact information, this examination was not conducted. In the absence of a VA examination report, the Board notes the findings of the February 2015 VA examiner who completed the peripheral nerves examination. He stated that the joint exam was normal and there was no wrist diagnosis. The Board finds no justification to assign separate ratings for joint symptoms given the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regards to these claims. 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). 2. Entitlement to an initial rating in excess of 10 percent prior to February 4, 2015 and in excess of 20 percent thereafter for right (minor) wrist carpal tunnel syndrome. The Veteran contends that higher evaluations are warranted for right wrist CTS in excess of the currently assigned 10 percent prior to February 4, 2015, and 20 percent thereafter. After thorough consideration of the evidence of record, the Board finds that the preponderance of the evidence warrants the assignment of a 20 percent rating, but no higher, for right (non-dominant) wrist CTS for the entire period on appeal. The probative evidence of record reflects that the Veteran’s right wrist CTS has resulted in disability comparable to moderate, incomplete paralysis. Pursuant to Diagnostic Code 8515, the Veteran has moderate, incomplete paralysis of the right upper major extremity, contemplated by a 20 percent rating for the dominant extremity. In so finding, the Board observes the clinical evidence, which indicates that the Veteran was diagnosed with CTS and consistently reported pain in his right wrist. Upon VA examination in September 2009, he reported numbness and severe daily flare-ups. Typing, extreme flexion and extension, and lifting and carrying caused flare-ups. Weakness, fatigue, and pain were noted by the examiner. He diagnosed bilateral CTS, with mild impact on dressing and grooming, moderate impact on chores, and severe impact on exercise and recreation. The July 2015 EMG testing reflected moderate bilateral median neuropathy at the wrists. Most recently, in May 2016, the Veteran reported mild intermittent pain. The examiner reported mild incomplete paralysis of the right median nerve. The Board also notes that the Veteran has consistently been prescribed and utilized wrist splints for his CTS since 2009. In addition to the medical evidence, the Board has carefully reviewed and considered the lay statements regarding the severity of the Veteran’s service-connected right wrist CTS. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Comprehensive review of the lay and medical evidence reveals that the right wrist CTS more nearly approximates moderate, incomplete paralysis. Accordingly, after affording the Veteran the benefit of the doubt, the Board finds that an initial 20 percent rating is warranted for moderate, incomplete paralysis of the Veteran’s non-dominant right upper extremity CTS. Severe incomplete paralysis or complete paralysis is not shown by the lay or medical evidence; thus, a higher rating in excess of 20 percent is not warranted. As discussed above, the Board acknowledges the prior remand instructions aimed at obtaining a medical opinion regarding the Veteran’s joint symptoms. However, the evidence of record provides no justification to assign separate ratings for joint symptoms. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regards to these claims. See Doucette, 28 Vet. App. at 366. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability is remanded. As noted by the Board in the February 2016 and May 2017 remands, TDIU may be granted on an extraschedular basis. The prior Board remand instructions directed the AOJ to refer the matter of TDIU, on an extraschedular basis under 38 C.F.R. § 4.16(b), to the Director, Compensation Service, for consideration. This was not done. Consequently, a remand for such action is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).] The matter is REMANDED for the following action: 1. Forward the Veteran’s claim for TDIU to the Director of Compensation Service for consideration of entitlement to a total disability rating based upon unemployability on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.