Citation Nr: 18161195 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 09-27 492 DATE: December 28, 2018 ORDER Prior to January 6, 2014, entitlement to a disability rating in excess of 10 percent for the Veteran’s right wrist carpal tunnel disability is denied. Prior to January 6, 2014, entitlement to a disability rating in excess of 10 percent for the Veteran’s left wrist carpal tunnel disability is denied. From January 6, 2014, entitlement to a disability rating in excess of 30 percent for the Veteran’s right wrist carpal tunnel disability is denied. From January 6, 2014, entitlement to a disability rating in excess of 20 percent for the Veteran’s left wrist carpal tunnel disability is denied. From April 29, 2008 to January 17, 2018, entitlement to a disability rating in excess of 10 percent for the Veteran’s bilateral hearing loss is denied. From January 17, 2018, entitlement to a disability rating in excess of 40 percent for the Veteran’s bilateral hearing loss is denied. Prior to December 19, 2013, entitlement to service connection for total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 6, 2014, the Veteran’s right and left wrist carpal tunnel syndrome manifested as mild, incomplete paralysis. 2. From January 6, 2014, the Veteran’s right and left wrist carpal tunnel syndrome manifested as moderate, incomplete paralysis. 3. From April 29, 2008 to January 17, 2018, at worst, the Veteran had Level IV hearing loss in both ears. 4. From January 17, 2018, at worst, the Veteran had Level VII right ear hearing loss and Level VIII left ear hearing loss. 5. Prior to December 19, 2013, the preponderance of the evidence reflects that the Veteran’s service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to January 6, 2014, the criteria for a disability rating in excess of 10 percent for the Veteran’s right wrist carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.124a, Diagnostic Code 8515 (2018). 2. Prior to January 6, 2014, the criteria for a disability rating in excess of 10 percent for the Veteran’s left wrist carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.124a, Diagnostic Code 8515 (2018). 3. From January 6, 2014, the criteria for a disability rating in excess of 30 percent for the Veteran’s right wrist carpal tunnel have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.124a, Diagnostic Code 8515 (2018). 4. From January 6, 2014, the criteria for a disability rating in excess of 20 percent for the Veteran’s left wrist carpal tunnel have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.124a, Diagnostic Code 8515 (2018). 5. Prior to April 29, 2008, the criteria for a compensable disability rating for bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2018). 6. From April 29, 2008 to January 17, 2018, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2018). 7. From January 17, 2018, the criteria for a disability rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2018). 8. Prior to December 19, 2013, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA’s duty to notify was satisfied by a letter sent in May 2006. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The evidence of record includes the Veteran’s VA treatment records, and the Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a VA examination for his bilateral hearing loss in June 2008. The Board found the examination was inadequate, and in October 2013, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA records and receive another VA examination for his bilateral hearing loss and bilateral carpal tunnel disabilities. The Veteran received a new VA examination for his bilateral hearing loss in December 2013 and for his carpal tunnel disabilities in January 2014. In December 2017, the Board remanded the case to the AOJ because the December 2013 VA examiner did not report the functional impact of the Veteran’s bilateral hearing loss on his daily activities. Additionally, the Veteran reported having surgery on his left wrist in December 2014. Consequently, the case was remanded for the Veteran to receive new VA examinations. The Veteran received new VA examinations in January 2018. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Bilateral Carpal Tunnel Syndrome The Veteran’s right and left wrist carpal tunnel syndrome are rated under Diagnostic Code 8515, paralysis of the median nerve. Diagnostic Code 8515 relates to impairments of the median nerve and provides that a 10 percent disability evaluation is assigned for mild, incomplete paralysis of the median nerve of the minor or major hand. A 20 percent evaluation is warranted for moderate, incomplete paralysis of the minor hand, and a 30 percent disability evaluation is contemplated for moderate, incomplete paralysis of the major hand. A 40 percent evaluation is warranted for severe, incomplete paralysis of the minor hand, and a 50 percent evaluation is contemplated for severe, incomplete paralysis of the major hand. A 60 percent evaluation is contemplated for complete paralysis of the minor hand, and a 70 percent evaluation is contemplated for complete paralysis of the major hand. 38 C.F.R. § 4.124a (2018). 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. 38 C.F.R. § 4.69. The Veteran in this case is right-handed, as noted in his VA examinations. Words such as “mild,” “moderate,” “moderately severe,” 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. Use of terminology such as “severe” by VA examiners and others, although 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. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Prior to January 6, 2014 The Veteran received a VA examination in June 2008. He reported constant tingling, numbness, and weakness in his fingers. However, he stated that his symptoms did not lead to functional impairment. He could tie his shoes, fasten buttons, and pick up and tear pieces of paper without difficulty. The Veteran’s Phalen’s test was negative and Tinel’s sign was absent. Phalen’s test is used to detect carpal tunnel syndrome. Dorland’s Illustrated Medical Dictionary, 1896 (32nd ed. 2012). A positive Tinel sign indicates a partial lesion or the beginning regeneration of the nerve. Id. at 1716. The examiner diagnosed bilateral carpal tunnel syndrome with an objectively normal examination. At a general VA examination in November 2010, the examiner noted the Veteran had no impaired strength or decreased dexterity in either hand. In October 2011, the Veteran testified at a DRO hearing and reported that he had trouble with his grip. Specifically, he had difficulty working with pipes and wrenches in his job as a plumber. The remainder of the VA treatment records list carpal tunnel syndrome in the Veteran’s problem list but do not discuss its symptoms. The Board finds the evidence of record shows that an increase is not warranted. The evidence shows the Veteran had numbness and weakness in his hands and fingers. Further, the Board considers the Veteran’s competent and credible report of decreased grip strength. Nevertheless, the Board notes the Veteran was negative for Phalen’s test and absent for Tinel’s sign. Aside from decreased grip strength, no other functional impact was reported. Accordingly, the Veteran’s carpal tunnel is best captured by mild incomplete paralysis and is appropriately rated at 10 percent. From January 6, 2014 The Veteran’s next VA examination was on January 6, 2014. The Veteran reported having difficulty holding a pipe wrench because of decrease strength in his left hand grip. He reported that his left hand was worse than his right. He also experienced numbness in both hands at night or when he sits with his wrists dorsiflexed. He reported that he had never sought treatment for the condition. The examiner found that the Veteran did not haver constant pain or intermittent pain. The examiner found that the Veteran had mild paresthesias and/or dysesthesias in both upper extremities, and mild numbness in both upper extremities. His strength was normal at 5/5. His deep tendon reflexes were absent in his biceps, triceps, and brachioradialis bilaterally. He had decreased sensation in his hand and fingers in both upper extremities. He had no trophic changes. The Veteran tested positive on the Phalen’s and Tinel’s test. The examiner rated the Veteran’s disability as mild, incomplete paralysis for both upper extremities and stated that his bilateral carpal tunnel syndrome did not impact his ability to work. The Veteran’s most recent VA examination was in January 2018. He continued to report numbness in his hands on and off at night. The examiner found that the Veteran did not have constant or intermittent pain, and did not have paresthesias and/or dysesthesias. He had mild numbness in both upper extremities. Muscle strength and reflexes were normal. He did not have atrophy. The examiner found the Veteran had incomplete paralysis. The examiner also noted that the sensory examination was inconclusive because the Veteran gave different answers of feelings and nonfeeling when testing the same area. Thus, the examiner found the Veteran had symptoms of bilateral carpal tunnel syndrome but the sensory examination was inconclusive. The Board finds the Veteran is appropriately rated at 20 percent for his left wrist and 30 percent for his right wrist. The Board acknowledges the January 2014 VA examination shows a worsening of the Veteran’s disability. The Veteran tested positive on the Phalen’s and Tinel’s test. However, the Board notes the VA examiners consistently rated the Veteran’s disability as mild incomplete paralysis. While the VA examiner’s rating is not determinative, the Board finds the evidence of record does not show the Veteran has severe, incomplete paralysis such that a higher rating is warranted. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim for an increased rating for his right and left wrist carpal tunnel. 2. Bilateral Hearing Loss Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for bilateral hearing loss in September 2004. Fenderson v. West, 12 Vet. App. 119 (1999). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI (2018). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85 (2018). An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2018). In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a disability evaluation using Table VII. Id. Prior to January 17, 2018 On the authorized audiological evaluation in June 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 55 55 65 LEFT 40 50 50 60 65 The average pure tone threshold was 55 in the right ear and 56 in the left ear. Speech audiometry revealed speech recognition ability of 82 percent the right ear and 80 percent in the left ear. The June 2008 VA examiner described the functional effects of the Veteran’s hearing loss on his daily activities as having difficulty hearing normal conversations. Using Table VI, the Veteran had Level IV hearing loss in both ears, which is contemplated by the 10 percent rating. On the authorized audiological evaluation in June 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 55 60 LEFT 35 35 50 55 60 The average pure tone threshold was 51 in the right ear and 50 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Based on this VA examination, under Table VI the Veteran had Level I hearing loss in both ears. This is contemplated by a noncompensable rating. On the authorized audiological evaluation in December 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 60 60 LEFT 40 45 60 65 70 The average pure tone threshold was 55 in the right ear and 60 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in in the right ear and 82 percent in the left ear. The December 2013 VA examiner reported the Veteran’s bilateral hearing loss had no functional impact on the conditions of his daily life. Based on this VA examination and Table VI, the Veteran had Level II hearing loss in his right ear and Level IV hearing loss in his left ear. This is contemplated by a noncompensable rating. Based on the three VA examinations of record a 10 percent rating is warranted. 38 C.F.R. § 4.85. While the Board considers the Veteran’s lay statements, the Board must apply the VA rating criteria when determining if an increased disability rating is warranted. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The Veteran competently and credibly described the functional impact of his hearing loss at his June 2008 VA examination as having problems understanding conversations and at his October 2011 DRO hearing, where he stated that he had difficulty hearing words in conversation and had to ask people to speak louder. These are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). From January 17, 2018 On the authorized audiological evaluation on January 17, 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 65 65 85 95 LEFT 50 55 70 80 90 The average pure tone threshold was 78 in the right ear and 74 in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in in the right ear and 54 percent in the left ear. The January 2918 VA examiner reported the Veteran had to ask others to repeat themselves a lot and had a hard time understanding conversations. The Veteran also stated that he found himself avoiding conversations. Based on this VA examination and Table VI, the Veteran had Level VII hearing loss in his right ear and Level VIII hearing loss in his left ear, which is contemplated by the 40 percent rating. The Veteran had an exceptional pattern of hearing loss in both ears. 38 C.F.R. § 4.86. Using this examination and Table VIA, the Veteran had Level VII hearing loss in his right ear and Level VI hearing loss in his left, which is less favorable because it is contemplated by the 30 percent rating. Based on the VA examination and Tables VI, VIA, and VII, a 40 percent rating is warranted. 38 C.F.R. § 4.85. As noted previously, the Board considers the Veteran’s credible report of hearing difficulty, including his report of having to ask for repetition in conversations. This symptom is contemplated by the rating criteria. Doucette, 28 Vet. App. 366. The Veteran’s increased hearing loss is adequately captured by the increase in his disability rating from 10 percent to 40 percent. The Board is bound to apply the VA rating schedule, which places the Veteran’s disability at a 40 percent rating. Thus, the Board finds an increase higher than 40 percent based on the evidence of record is not warranted. TDIU In an October 2016 rating decision, the RO granted a TDIU effective December 19, 2013. However, because the Board took jurisdiction over the TDIU claim in its October 2013 remand under Rice v. Shinseki, 22 Vet. App. 447 (2009), it was part of the underlying claims for increased ratings. Because TDIU has not been in effect for the entire appeal period for the underlying increased rating claims, the issue of entitlement to a TDIU prior to December 19, 2013, remains on appeal. Harper v. Wilkie, (No 16-3519), 2018 U.S. App. Vet. Claims LEXIS 1618. A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran met the schedular requires for TDIU for the entire appeal period; however, the Board finds the Veteran was not unemployable prior to December 19, 2013. First, the Veteran worked as a plumber during a portion of the appeal period. On his June 2010 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), he reported working as a plumber from 1999 through April 16, 2010. Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). He stated that he earned between $2,000 and $2,500 per month. Assuming that the Veteran earned $2,000 per month, he earned approximately $24,000 per year. In 2010, the poverty threshold for one person under age 65 was $11,344. Additionally, there is no indication, and the Veteran does not assert, that his employment as a plumber was in a protected environment such as a family business or sheltered workshop, and the evidence does not show that accommodations were made for him during his employment as a plumber. The Veteran’s employment was not marginal. As he was gainfully employed prior to April 16, 2010, a TDIU prior to that date is not warranted. He stopped working on April 16, 2010, not due to his service-connected disabilities, but because he needed to take care of his ailing father. Moreover, in a November 2010 VA record, the examiner considered the Veteran’s service-connected PTSD and found in had no effect on his occupation. The Veteran continued to work after he stopped his plumber job delivering newspapers. This job was part-time, approximately 20 hours per week. He did not provide salary information for this job, so it is not possible to determine whether it is marginal employment. The Veteran stated he stopped delivering newspapers because of the rising gas prices. If the newspaper delivery job was marginal employment, TDIU still cannot be granted because the record does not show that he was unable to work due to his service-connected disabilities. The evidence shows that his PTSD has caused difficulty in his employment. However, the VA examiners consistently concluded that his psychiatric disability would not render him unemployable. In June 2011, an examiner noted that the Veteran’s PTSD caused him to have problems getting along with others, which caused problems at work, but that this did not preclude employment. Likewise, in June 2010 and September 2011, VA examiners concluded his service connected diabetes would not render him unemployable. The Board also notes the Veteran’s statements that his lower extremity peripheral neuropathy caused his feet to go numb and required him to take his boots off during work. Nevertheless, the preponderance of the evidence does not show the Veteran’s service-connected disabilities precluded him from gaining substantial employment. Accordingly, TDIU prior to December 19, 2013, is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel