Citation Nr: 18160976 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 07-35 709 DATE: December 28, 2018 ORDER Entitlement to a rating in excess of 10 percent disabling for traumatic arthritis, as the residual of a right wrist fracture, is denied. Entitlement to disability rating in excess of 10 percent disabling for right wrist carpal tunnel syndrome for the period prior to September 5, 2017 is denied. Entitlement to a rating in excess of 20 percent disabling for right wrist carpal tunnel syndrome for the period since September 5, 2017 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period since September 5, 2017 is granted. REMANDED Entitlement to a TDIU on an extraschedular basis for the period prior to September 5, 2017 is remanded. FINDINGS OF FACT 1. The Veteran was not diagnosed with ankylosis of the right wrist during the period on appeal. 2. For the period prior to September 5, 2017, the Veteran’s carpal tunnel of the right wrist most nearly approximated mild incomplete paralysis of the median nerve. 3. For the period since September 5, 2017, the Veteran’s carpal tunnel of the right wrist most nearly approximated mild incomplete paralysis of the median and ulnar nerves. 4. For the period since September 5, 2017, the Veteran has been precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent disabling for traumatic arthritis, as the residual of a right wrist fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5215 (2017). 2. The criteria for entitlement to a rating in excess of 10 percent disabling for right wrist carpal tunnel syndrome for the period prior to September 5, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.20, 4.27, 4.123, 4.124a, Diagnostic Code 8515. 3. The criteria for entitlement to a rating in excess of 20 percent disabling for right wrist carpal tunnel syndrome for the period since September 5, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.6, 4.7, 4.20, 4.27, 4.123, 4.124a, Diagnostic Code 8515. 4. The criteria for entitlement to a TDIU for the period since September 5, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The Veteran contends that he is entitled to increased ratings for service-connected traumatic arthritis of the right wrist and carpal tunnel syndrome of the right wrist. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. “Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the Veteran’s disability in the period one year before he filed his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 1. Entitlement to a rating in excess of 10 percent disabling for traumatic arthritis, as the residual of a right wrist fracture The Veteran contends that he is entitled to a rating in excess of 10 percent disabling for his traumatic arthritis of the right wrist, as he experiences a significantly decreased range of motion and claims nearly total loss of use of function for his dominant hand/wrist. The Board finds that his current rating represents the maximum rating for limitation of motion of the wrist, and his right wrist disability does not more closely approximate the symptoms for a higher rating under a different applicable diagnostic code. Diagnostic Code 5214 provides ratings for ankylosis of the wrist. Unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist. A corresponding Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. Id. Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). As stated above, throughout the period on appeal, the Veteran has been rated at a maximum 10 percent rating for limitation of motion of the wrist, where ankylosis is absent, under Diagnostic Code 5215. The evidence of record does not indicate at any time during the period on appeal that the Veteran was found to have ankylosis of his right wrist, including in August 2006, August 2013, April 2016, and September 2017 VA examinations. Additionally, the medical evidence of record, including the aforementioned VA examinations, does not indicate that the functional impairment of his right wrist is such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Although the Veteran exhibited symptoms of pain, swelling, weakness, stiffness, reduced grip, and reduced manual dexterity which resulted in some degree of functional loss, as noted above, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, consideration for an increased rating based on the criteria set out in Deluca is inapplicable. DeLuca v. 8 Vet. App. at 202; Johnston 10 Vet. App. at 84-5; 38 C.F.R. § 4.59. Furthermore, the record does not indicate that the Veteran’s symptoms are not adequately considered under Diagnostic Code 5215. The symptoms associated with the Veteran’s traumatic arthritis listed above are contemplated by the rating criteria and the assigned rating, and the medical evidence of record fails to show anything unique or unusual about this disability that would render the schedular criteria inadequate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5215. As the available schedular criteria for the Veteran’s disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008) (the first step of the analysis to determine whether referral for extraschedular consideration is warranted is to determine whether the evidence presents such an exceptional disability picture that applicable schedular evaluations are inadequate). Accordingly, the evidence of record is against a finding that the Veteran’s right wrist manifested ankylosis at any time during the period on appeal, and entitlement to a rating in excess of 10 percent is not warranted. 2. Entitlement to an increased rating for right wrist carpal tunnel syndrome The Veteran contends that he is entitled to an increased rating for his right wrist carpal tunnel syndrome, as his symptoms more nearly approximate the criteria for a higher rating. His right wrist carpal tunnel syndrome is currently rated as 10 percent disabling for the period prior to September 5, 2017 and as 20 percent disabling thereafter. Prior to September 5, 2017, the Veteran’s carpal tunnel syndrome was rated under Diagnostic Code 8515, and under Diagnostic Code 8513 thereafter, for paralysis of the peripheral nerves. Diagnostic Codes 8515 and 8513 both evaluate paralysis of the peripheral nerves as being either complete or incomplete, with incomplete paralysis being further divided into classifications of severity of mild, moderate, and severe. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with 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. Id. Neuritis, cranial or peripheral, 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. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Words such as “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. 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. The Board observes in passing that “mild” is defined as “not very severe.” See WEBSTER’S NEW WORLD DICTIONARY, SECOND COLLEGE EDITION (1999), 694. “Moderate” is defined as “of average or medium quantity, quality, or extent.” Id. at 704. “Severe” is generally defined as “extremely intense.” Id. at 1012. A. Entitlement to a rating in excess of 10 percent disabling for the period prior to September 5, 2017 The Veteran’s carpal tunnel syndrome was rated under Diagnostic Code 8515 prior to September 5, 2017, which assigns a 10 percent evaluation for mild incomplete paralysis of the median nerve of the major or minor hand. A 30 percent evaluation is assigned for moderate incomplete paralysis of the median nerve of the major hand. A 50 percent evaluation is assigned for severe incomplete paralysis of the median nerve of the major hand. Finally, a 70 percent evaluation is assigned for complete paralysis of the median nerve of the major hand, with 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; pain with trophic disturbances. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran was granted service connection for right wrist carpal tunnel syndrome in a September 2007 rating decision and assigned a 10 percent rating, effective July 31, 2006. Prior to September 5, 2017, the evidence does not support a rating in excess of 10 percent. In this regard, although the Veteran reported pain and numbness in his right hand and fingers during this period, medical evaluations show that the median nerve of his right hand exhibited no more than mild incomplete paralysis for the period prior to March 24, 2017. A March 2007 VA neurology consultation record noted that he had no pinprick loss on examination, but exhibited mild weakness and minimal atrophy in the distribution of the right median nerve. An August 2013 VA examination indicated that the Veteran did not exhibit any symptoms related to a peripheral nerve condition, including as related to the median nerve. In an April 2016 VA examination, the examiner noted that the Veteran had been diagnosed with carpal tunnel syndrome, but indicated that the condition was resolved after surgery. The examiner further indicated that he did not have any symptoms attributable to any peripheral nerve conditions, and that the median nerve was normal. Given these findings, the Board concludes that a rating in excess of 10 percent is not warranted during this period. The medical evidence of record does not indicate that the Veteran’s symptoms related to his incomplete paralysis of the median nerve of his right hand were of more than mild severity prior to September 5, 2017. B. Entitlement to a rating in excess of 20 percent disabling for the period since September 5, 2017 The Veteran’s carpal tunnel syndrome is rated under Diagnostic Code 8513 for the period since September 5, 2017, which assigns a 20 percent evaluation for mild incomplete paralysis of all radicular groups of the peripheral nerves of the major hand. A 40 percent evaluation is assigned for moderate incomplete paralysis of all radicular groups of the peripheral nerves of the major hand. A 70 percent evaluation is assigned for severe incomplete paralysis of all radicular groups of the peripheral nerves of the major hand. Finally, a 90 percent evaluation is assigned for complete paralysis of all radicular groups of the peripheral nerves of the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The AOJ granted entitlement to a rating of 20 percent disabling for the Veteran’s right wrist carpal tunnel syndrome in a May 2018 rating decision based on the findings of a September 5, 2017 VA examination. In the September 2017 examination, the examiner indicated that the Veteran exhibited symptoms of: mild constant pain of the right upper extremity, moderate intermittent pain of the right upper extremity, moderate paresthesias and/or dysesthesias of the right upper extremity, and mild numbness of the right upper extremity. The examiner noted slightly decreased muscle strength on wrist flexion, wrist extension, and grip, but indicated there was no muscle atrophy present. The Veteran’s reflexes in his biceps, triceps, and brachioradialis muscles were hypoactive bilaterally. He exhibited normal sensation for light tough in his shoulder area and inner/outer forearm, but showed decreased sensation in his right hand/fingers. The Veteran was positive for both Phalen’s sign and Tinel’s sign on testing for the median nerve. The examiner indicated that the Veteran had mild incomplete paralysis of the median and ulnar nerves. The examiner listed a functional impact of reduced manual dexterity and reduced grip of the right hand. The evidence of record does not indicate that there has been a change or worsening of the Veteran’s symptoms related to his right wrist carpal tunnel syndrome since the September 2017 examination. Accordingly, the evidence shows that the Veteran exhibited no worse than mild incomplete paralysis of the median and ulnar nerves for the period since September 5, 2017, and therefore a rating in excess of 20 percent disabling is not warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that he has been unable to obtain and maintain substantially gainful employment as a result of his service connected disabilities. The record indicates that he is service connected, in relevant part, for posttraumatic stress disorder (PTSD) as 30 percent disabling prior to May 8, 2008 and as 50 percent disabling thereafter; for right wrist carpal tunnel syndrome as 10 percent disabling prior to November 5, 2017 and as 20 percent thereafter; for right wrist traumatic arthritis as 10 percent disabling; for tinnitus as 10 percent disabling; for bilateral inguinal hernia repair as noncompensably disabling; for ventral hernia repair as noncompensably disabling; for bilateral hearing loss as noncompensably disabling; and for a scar associated with right wrist surgery as noncompensably disabling. Therefore, the Veteran has a combined evaluation of 70 percent for the period since September 5, 2017. A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Accordingly, the Veteran meets the schedular criteria for entitlement to a TDIU as of September 5, 2017. The record indicates that the Veteran last worked on November 22, 2006 as a marine diesel engine mechanic/supervisor of maintenance. The Veteran claims that he was forced to leave that position due to his right wrist disabilities. In his VA Form 21-8940, the Veteran indicated that he had education or training in auto body work from 1969 to 1971. The evidence of record indicates that the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities. In a July 2006 statement, the Veteran indicated that his right wrist symptoms resulted in almost a complete loss of function in his dominant hand. He stated that the disability was having a detrimental effect on his job, and that his employer sent him home and instructed him to obtain a release from a doctor before he returned to work. In his October 2007 VA Form 9, the Veteran indicated that he was unable to use his right hand to function in his job as a diesel mechanic. In a May 2012 statement, the Veteran’s former employer stated that he had an issue with the use of his right wrist as long as he could recall, and noted seeing him in a great deal of pain on numerous occasions. The individual further stated that his right wrist disability caused him to miss work and affected his ability to do his job. As stated above, in September 2017 VA examinations of the Veteran’s peripheral nerves, the examiner indicated that the Veteran exhibited symptoms of: mild constant pain of the right upper extremity, moderate intermittent pain of the right upper extremity, moderate paresthesias and/or dysesthesias of the right upper extremity, and mild numbness of the right upper extremity. The examiner noted slightly decreased muscle strength on wrist flexion, wrist extension, and grip, but indicated there was no muscle atrophy present. The Veteran’s reflexes in his biceps, triceps, and brachioradialis muscles were hypoactive bilaterally. He exhibited normal sensation for light tough in his shoulder area and inner/outer forearm, but showed decreased sensation in his right hand/fingers. The Veteran was positive for both Phalen’s sign and Tinel’s sign on testing for the median nerve. The examiner indicated that the Veteran had mild incomplete paralysis of the median and ulnar nerves. The examiner listed a functional impact of reduced manual dexterity and reduced grip of the right hand. In a September 2017 VA examination regarding the Veterans traumatic arthritis of the right wrist, the examiner indicated that the disability also resulted in reduced manual dexterity and reduced grip of the right hand. The Veteran had limited range of motion for all ranges, and pain was noted on examination which caused functional loss. There was evidence of pain on weight bearing and tenderness to palpation over the joint. The examiner indicated pain significantly limited functional ability with repeated use. The Veteran exhibited a reduction in muscle strength for both extension and flexion of his wrist, but did not have muscle atrophy. The examiner indicated that the Veteran’s prior wrist surgeries in 1999 and 2006 resulted in residuals of pain, stiffness, and weakness. The examiner noted pain on both active and passive motion, and with and without weight-bearing. In his most recent VA examination for PTSD, conducted in September 2013, the examiner noted that the Veteran exhibited symptoms of nightmares, insomnia, hyperarousal, flashbacks, social isolation, and visual misperceptions (sees black figures running that are the Vietcong). The examiner further indicated symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner indicated that the Veteran’s occupational and social impairment was best described as resulting in an occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner stated that the Veterans PTSD should not prevent him from working. In sum, the Veteran’s occupational and educational history is related entirely to work involving physical labor, specifically as a mechanic, which the evidence of record indicates he is unable to perform due to his service-connected disabilities. Although the record indicates that he is not entirely precluded from employment as a result of his PTSD, when considering the Veteran’s inability to perform tasks requiring arm strength and manual dexterity, and his lack of training or education in any field which does not require such abilities, the Board finds that his symptoms related to his PTSD substantially limit his ability to find employment an any remaining field. Therefore, the Board finds that entitlement to a TDIU is warranted, as of September 5, 2017. REASONS FOR REMAND Entitlement to a TDIU for the period prior to on an extraschedular basis is remanded. As noted above, the evidence of record indicates that the Veteran last worked in November 2006. However, the Veteran is not eligible for a TDIU on a schedular basis based on his combined disability rating failing to meet the 70 percent threshold set out in 38 C.F.R. § 4.16(a). A TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b), if it is determined that the Veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). However, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA’s Director, Compensation Service for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Although the Board indicated that the AOJ should consider whether to refer the Veteran’s claim to the Director, Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis in prior remands concerning the instant appeal, the record does not reflect that the claim was ever actually referred for consideration. Based the evidence detailed above, the Board concludes there is plausible evidence of unemployability during the rating period for consideration on appeal prior to September 5, 2017, so as to warrant referral to the Director, Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. The Veteran claimed on numerous occasions that he was forced to retire for his occupation as a diesel engine mechanic due to his wrist disabilities, supported by a statement from his former employer, and his educational and occupational history indicate that he has limited skills to perform jobs unaffected by his physical and psychiatric conditions. While the Veteran’s various VA examination opinions prior to September 5, 2017 have not indicated that he was precluded from obtaining or maintaining substantially gainful employment as a result of his individual service-connected disabilities, no opinion exists considering the total combined effect of his multiple disabilities on his employability. Further, there is no indication that the examiners who rendered the opinion considered the Veteran’s occupational and educational history in drawing their conclusions. Thus, on remand, refer the Veteran’s TDIU claim to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b) at any time prior to September 5, 2017. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b) at   any time during the rating period for consideration on appeal prior to September 5, 2017. A copy of the Director’s decision on this claim must be included in the claims file. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel