Citation Nr: 18156078 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-24 660A DATE: December 6, 2018 ORDER A rating in excess of 10 percent disabling for left carpal tunnel syndrome is denied. A rating in excess of 10 percent disabling for right carpal tunnel syndrome is denied. Prior to June 30, 2017, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left carpal tunnel syndrome has been manifested by symptomatology more nearly approximating mild incomplete paralysis of the median nerve. 2. The Veteran’s right carpal tunnel syndrome has been manifested by symptomatology more nearly approximating mild incomplete paralysis of the median nerve. 3. Prior to June 30, 2017, the effects of the Veteran’s service-connected disabilities do not render him unable to obtain or maintain substantially gainful employment as a result of his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent disabling for left carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10. 4.14, 4.124a, Diagnostic Code 8599-8518. 2. The criteria for a rating in excess of 10 percent disabling for right carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.124a, Diagnostic Code 8599-8518. 3. The criteria for TDIU prior to June 30, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to December 2009. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different rating during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s bilateral carpal tunnel syndrome is currently rated as 10 percent disabling for both hands under the hyphenated Diagnostic Code 8599-8515. Carpal tunnel syndrome is not specifically listed in the Rating Schedule; therefore, the Veteran’s disability must be rated by analogy. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” by using the first two digits of the diagnostic code for the most closely analogous disability, followed by the terminal digits “99” connoting an unlisted condition. See 38 C.F.R. § 4.27. Carpal tunnel syndrome “result[s] from compression of the median nerve.” Dorland’s Illustrated Medical Dictionary 1824 (32nd ed. 2012); see Wilson v. Brown, 7 Vet. App. 542, 544 (1995). Diagnostic Code 8515 contemplates paralysis of the median nerve, and therefore, is an appropriate diagnostic code under which to rate the Veteran’s disability. Diagnostic Codes 8510-8719 address ratings for paralysis, neuritis, and neuralgia of the peripheral nerves affecting the upper extremities, and provide different disability ratings for the major (dominant) and minor (non-dominant) side. Diagnostic Codes 8515, 8615, and 8715 provide ratings for paralysis, neuritis, and neuralgia, respectively, of the median nerve. As relevant to the major arm, Diagnostic Code 8515, provides a 70 percent disability rating for complete paralysis of the median nerve, demonstrated by 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; pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 50 percent disability rating is assigned for severe incomplete paralysis. A 30 percent disability rating is assigned for moderate incomplete paralysis. A 10 percent disability rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia are to be rated as incomplete paralysis. Neuritis, “characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating,” shall not be rated higher than severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for “neuritis not characterized by organic changes referred to in this section” is moderate, or with sciatic nerve involvement, moderately-severe incomplete paralysis. Id. Neuralgia, “characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve,” shall not be rated higher than moderate incomplete paralysis. 38 C.F.R. § 4.124. The Rating Schedule further clarifies that “when the [neural] involvement is wholly sensory, the rating should be for mild, or at most, moderate” incomplete paralysis. 38 C.F.R. § 4.124a. The words “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. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Entitlement to a rating in excess of 10 percent disabling for bilateral carpal tunnel syndrome. The Veteran filed a claim for an increased rating for his bilateral carpal tunnel syndrome in September 2012. As such, the period of appeal is from one year prior to this date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). After review of the relevant medical and lay evidence over the period on appeal, the Board finds that a rating in excess of 10 percent disabling for bilateral carpal tunnel syndrome is not warranted. In October 2012, the Veteran was afforded a VA examination to evaluate the current symptomatology of his bilateral carpal tunnel syndrome. He reported constant achiness, dullness and tingling in both his hands. There were no prior surgeries or injections of record for either of his hands. On the day of the examination he reported no pain. He occasionally wore bilateral wrist splints. Muscle strength at the wrist flexion and extension was recorded as 5/5 for both hands. Although, he reported occasionally dropping items from his hands. His right hand was his dominant hand. The VA examiner observed there was limited intermittent mild pain and mild paresthesias and/or dysesthesias upon examination. However, there was no numbness recorded. Moreover, there was no muscle atrophy. The examiner diagnosed bilateral carpal tunnel syndrome. Characterizing the symptomatology as mild incomplete median nerve paralysis. Further, he opined the condition had no impact on the Veteran’s ability to sustain employment. Clinical treatment records in August 2013, reveal the Veteran began experiencing greater pain in his hands, which he reported had begun approximately 6 years prior. He rated the pain at a level 3 on a scale from 1 to 10. There were no indications observed or reported that the pain radiated away from wrists to other parts of his body. Generally, the pain was associated with morning stiffness. In January 2015, a second VA examination was conducted to evaluate the Veteran’s current bilateral carpal tunnel symptoms. He reported that his knuckles hurt at a pain level of 2. As a result, he attempted to limit activities otherwise his pain level increased to approximately a 5 level. Additionally, he reported that he felt like there was sand between his joints. Although he was prescribed wrist braces, he stated he rarely wore them as his pain was limited. There was also a tingling sensation reported at bedtime. The VA examiner observed no evidence of degenerative or seronegative arthritis of either hand. Upon examination, the joints of both hands appeared normal. Wrist extension and flexion were recorded as 5/5. There was no indication of muscle atrophy. Notably, his left ring finger appeared to have some soft tissue constriction. Moreover, prolonged use of his hands while working at a computer could diminish his productivity. The VA examiner diagnosed bilateral carpal tunnel syndrome. Moreover, the examiner opined based on the Veteran’s lay statements, that the carpal tunnel impacted his ability to type on a computer for prolonged periods of time, which impacted his ability to maintain substantial gainful activity. An electrodiagnostic examination and a electromyography (EMG) report in August 2016, showed bilateral ulnar mononeuropathies at the elbow (bilateral cubital tunnel syndrome) of mild severity in each extremity based on the presence of slowing of ulnar motor conduction across the elbow bilaterally. There was no evidence of conduction block nor was there evidence of ulnar axonal injury. There were also findings of left median mononeuropathy at the wrist (left carpal tunnel syndrome) of mild severity and no evidence of right carpal tunnel syndrome. After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 10 percent disabling for bilateral carpal tunnel syndrome is not warranted. Both VA examiners in October 2012 and January 2015 reported no more than mild symptomatology. The Veteran experienced limited pain mainly when he utilized his hands for extended periods of time. Muscle strength for wrist flexion and extension were 5/5. Moreover, there were no indications of muscle atrophy. There were no abnormalities upon examination of his hands. In addition, there was no indication of complete paralysis related to the Ulnar nerve. The Board recognizes the Veteran’s assertions that his symptoms have increased and the Board finds his statements credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the competent medical evidence of record shows that the Veteran’s symptomatology reflects a frequency, severity, and duration more approximately commensurate with the criteria for a 10 percent rating. The competent VA examiners’ have provided reports that reviewed the relevant medical history, considered lay statements, conducted objective testing, and provided reasonable rationales for the Board to evaluate the claim. As such, the Board finds the reports are probative and outweigh the competent and credible lay statements. The Board acknowledges the Veteran’s representative’s request to remand for an outside opinion if unable to grant higher ratings for the left and right carpal tunnel syndrome. The Board declines this request. As set forth above, the Veteran has had two VA examinations during the appeal period and an EMG study in 2016. Additionally, the Board finds the request lacks weight as it is a vague request and does not point to any specific reason why the competent medical evidence of record is not adequately to rate the wrist disabilities at issue. The Board notes that the criteria for a moderate rating reflects more severe impairments that were not identified by either VA examiner. The VA examiners did not identify moderate symptoms that would warrant the next-higher level rating. Moreover, the evidence of record shows his symptoms have been generally the same level of disability during this period of the appeal; therefore, staged ratings are not necessary. See Fenderson, 12 Vet. App. at 126-27.   In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 10 percent disabling for the Veteran’s bilateral carpal tunnel syndrome disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to TDIU prior to June 30, 2017. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). Since January 1, 2010, the Veteran has at least an 80 percent combined evaluation for compensation. Thus, he meets the schedular criteria. Next, the Board turns to whether he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board further notes that the United States Court of Appeals for Veterans’ Claims (Court) has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled as a result of a service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In this case, the evaluation for the Veteran’s service-connected disabilities combined to be a 100 percent, effective June 30, 2017. Therefore, TDIU may be granted except for periods when a 100 percent combined evaluation has been in effect. The Board will next consider the period prior to June 30, 2017. In the present case, prior to October 3, 2017, the Veteran’s service-connected disabilities were coronary artery disease at 60 percent; obstructive sleep apnea at 50 percent; frontal lobe demyelinating lesion at 30 percent; reflux disease at 10 percent; generalized folliculitis at 10 percent; right hand carpal tunnel at 10 percent; left hand carpal tunnel at 10 percent; and small muscle strain, hemorrhoids, right inguinal hernia, chronic prostatitis, and onychomycosis of the toenails each rated as noncompensable. The appellant’s combined disability evaluation was 90 percent. Therefore, the Veteran did meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The question for the Board is whether or not his service-connected disabilities precluded him from substantially gainful employment. In September 2012, the Veteran submitted a VA Form 21-8940 (Veterans Application of Increased Compensation Based on Unemployability) on which he claimed that he was unemployable due to his heart condition. He reported that he last worked in December 2009 in an administrative position with the Air Force. The Veteran reported that he became too disable to work on July 17, 2010. Furthermore, he was enrolled in college courses. In October 2012, the Veteran was afforded a general VA examination. He reported that he was attending school for computer science and had been attending on a full-time basis prior to his heart attack in July 2010. He was now attending on a part-time basis since January 2012. On average he could walk 1 to 3 miles and could stand for approximately 15 mins prior to needing to rest. His lower back impacted his ability to stand for any significant length of time. Further, he could sit for approximately an hour before he had to reposition himself. The VA examiner recorded that the Veteran could lift 10 pounds; talk on the phone without issue; and there were no limitations on his driving. While the examiner noted that due to his heart and bilateral carpal tunnel disabilities he would have difficulties with repeated heavy lifting and a physically laborious job; he would be capable of working in a sedentary office occupation. The examiner opined he could answer phones, manage light desk work, and with proper training he could also become a driver. Clinical treatment records in August 2013, reveal the Veteran began experiencing greater pain in his hands, which he reported had begun approximately 6 years prior. He rated the pain at a level 3 on a scale from 1 to 10. There were no indications observed or reported that the pain radiated away from wrists to other parts of his body. Generally, the pain was associated with morning stiffness. A multigated acquisition scan (MUGA) was conducted in October 2013. The results showed a normal ejection fraction calculated as 43 percent. The wall motion was considered abnormal demonstrating anterior wall hypokinesis. In January 2015, the Veteran was afforded a VA examination for peripheral nerves related to his bilateral carpal tunnel syndrome. The examiner opined that his peripheral neuropathy would impact his ability to maintain performance standards based on the Veteran’s statement that prolonged use of a computer caused his hands to become tingly. It was noted that he did not work due to other issue. However, there was no indication that he was precluded from substantial gainful activity; solely that he may be less productive due to his bilateral carpal tunnel syndrome. An electrodiagnostic examination and a electromyography (EMG) report in August 2016, showed bilateral ulnar mononeuropathies at the elbow (bilateral cubital tunnel syndrome) of mild severity in each extremity based on the presence of slowing of ulnar motor conduction across the elbow bilaterally. There was no evidence of conduction block nor was there evidence of ulnar axonal injury. There were also findings of left median mononeuropathy at the wrist (left carpal tunnel syndrome) of mild severity and no evidence of right carpal tunnel syndrome. In June 2017, a PTSD disability questionnaire from a private physician recorded occupational and social functional limitation consisting of deficiencies in most areas such as school, work, family relations, judgement, thinking and mood. Notably, the Veteran lived in fear of dying from another heart attack, which caused overwhelming anxiety. It was noted that he cares for his totally disabled spouse. A VA examination for PTSD was conducted in September 2017. The examiner concluded that the Veteran did not meet the criteria for a PTSD diagnosis. However, the examiner did diagnosis anxiety disorder related to the service-connected myocardial infraction. Occupational and social impairment were noted as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; however, he generally would function satisfactorily with normal routine behaviors, self-care, and routine conversation. He had good judgment, insight, concentration, and attention. Based on the evidence above, the Board finds that prior to June 30, 2017, the Veteran’s service-connected disabilities did not preclude him from substantially gainful employment. Although his disabilities may have impacted his overall production levels there was no indication that he could not obtain or sustain gainful employment. In particular, the Board notes the opinion of the VA examiner in October 2012, who was charged specifically with evaluating the Veteran’s employability. The examiner concluded the Veteran was capable of working in an office environment; despite having bilateral carpal tunnel syndrome. The Board also finds the 2016 EMG report tends to weigh against TDIU. In this regard, it showed findings of left median mononeuropathy at the wrist (left carpal tunnel syndrome) of mild severity and no evidence of right carpal tunnel syndrome. More recently, the September 2017 VA PTSD examination report reflects that the Veteran had good judgment, insight, concentration, and attention. The Board finds that such evidence tends to weigh against a finding that the Veteran’s service-connected mental disorder would prevent him from securing or following a gainful occupation. The Board finds the above evidence to be competent and credible as it was gathered by competent medical professionals, who reviewed the Veteran’s history, performed examinations, and conducted diagnostic testing. For these reasons, the Board places much weight on them. The Board acknowledges the January 2015 VA examination for peripheral nerves related to his bilateral carpal tunnel syndrome. The examiner opined that his peripheral neuropathy would impact his ability to maintain performance standards based on the Veteran’s statement that prolonged use of a computer caused his hands to become tingly. The Board finds such evidence tends to show that the Veteran may have difficulty using a computer, but it does not bring the evidence into equipoise regarding whether it prevents him from securing or following gainful employment in another occupation. The Board recognizes the Veteran’s assertions that his service-connected disabilities precluded him from gainful employment. He is competent and credible to assert his observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this instance the competent medical evidence of record carries the greatest weight. The competent medical evidence of record, to include VA examinations does not show that his service-connected disabilities preclude him from substantially gainful employment. As such, the medical evidence of record carries the greatest weight. Further, the Board notes VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) benefits under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114 if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. at 294. Here, for the purposes of considering whether entitlement to SMC may be warranted, particularly in reference to 38 U.S.C. § 1114, the grant of TDIU based on more than one disability does not satisfy the schedular requirements that a claimant have a “service-connected disability rated as total.” Buie v. Shinseki, 24 Vet. App. 242 (2011). Similarly, multiple disabilities arising from a single incident that establish entitlement to schedular TDIU under 38 C.F.R. § 4.16(a) may not be considered as one disability that satisfies that requirement of a “service-connected disability rated as total.” Bradley, 22 Vet. App. at 290-91. Neither the Veteran’s contentions nor the evidence reflects that his unemployability and grant of TDIU is due solely to a single service-connected disability, such as his service-connected coronary artery disease, obstructive sleep apnea, or anxiety disorder. For example, the September 2017 VA PTSD examination reflects an assessment of occupational impairment as causing an occasional decrease in work efficiency. Additionally, the (Continued on the next page)   In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to TDIU prior to June 30, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel