Citation Nr: 1807777 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). 2. Entitlement to a rating in excess of 10 percent for a left wrist disability. REPRESENTATION Appellant represented by: Douglas I. Friedman, attorney. ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served in the U.S. Army Reserves, and had a period of active duty for training (ACDUTRA) from February 6, 2000 to February 26, 2000 (which is considered active duty as the Veteran sustained disabling injury during that period of service; see 38 C.F.R. § 3.306(a)). These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 (that denied service connection for bilateral carpal tunnel syndrome) and October 2015 (that denied a rating in excess of 10 percent for residuals of a left scaphoid fracture) rating decisions by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In August 2017 the case was remanded for further development (by a Veterans Law Judge other than the undersigned). The case is now assigned to the undersigned. In July 2017 correspondence the Veteran's attorney raised a matter of entitlement to service connection (and a separate compensable rating) for neurological disability of the left wrist (claimed as secondary to the scaphoid fracture residuals). That matter is inextricably intertwined with the claim seeking service connection for left CTS (and is addressed in the remand below). [In August 2017 VA received a notice of disagreement with a denial of the Veteran's claim for a total rating based on individual unemployability (TDIU). The record suggests that the RO is in the process of preparing a statement of the case (SOC) on the matter. Therefore a remand for the issuance of an SOC under Manlicon is not necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). The issue of service connection for left wrist neurological disability (to include CTS, and as a residual of a left scaphoid fracture) is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on her part is required. FINDINGS OF FACT 1. Right wrist CTS pre-existed the appellant's brief period of active duty service from February 6, 2000 to February 26 2000 and is not shown to have increased in severity during, or as a result of, such service. 2. Motion of the Veteran's left wrist is shown to be painful (but dorsiflexion exceeding 15 degrees and palmar flexion not limited in line with the forearm); the wrist is not ankylosed. CONCLUSIONS OF LAW 1. Service connection for right wrist CTS is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.303 (2017). 2. A rating in excess of 10 percent for residuals of a left scaphoid fracture is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes (Codes) 5214, 5215 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Regarding the claim of service connection for right CTS, VA's duty to notify was satisfied by a letters in June 2007, July 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The claim for an increased rating for residuals of a left scaphoid fracture was submitted as a "fully developed" claim. VCAA-mandated notice is attached to such claims, and the claimant certifies that notice was received. The Veteran's service treatment records (STRs) are associated with her record, and VA has obtained all pertinent postservice (private and VA) treatment records she identified. She was afforded VA examinations in October 2008, September 2015, and October 2017. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active duty service (which includes periods of ACDUTRA when disability was incurred). 38 U.S.C. § 1110; 38 C.F.R. §§ 3.6(a), 3.303. To substantiate a claim of service connection, there must be evidence of: (i) a current disability (for which service connection is claimed); (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Osteoarthritis established by X-ray is rated on the basis of limitation of motion under the appropriate diagnosis codes for the specific joint involved. When, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating of is warranted for each major joint or group of minor joints. 38 C.F.R. § 4.71a, Code 5003. Code 5215 provides for a (maximum) 10 percent rating if palmer flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. A higher rating is available under Code 5214 (for ankylosis of the wrist). Under Code 5214, a 20 percent rating is warranted for favorable (in degrees to 30 degrees dorsiflexion) ankylosis of the minor wrist. Higher ratings may be assigned for ankyloses in other than favorable position. 38 C.F.R. § 4.71, Plate I. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned for different periods of time based on facts found where the disability fluctuated in severity during the evaluation period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record 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 piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. The instant claim for an increased rating for residuals of a left scaphoid fracture was received July 21, 2015, and the period for consideration begins one year prior. In a January 1998 Veteran was seen by a private provider for complaints of pain and paresthesia in a medial nerve disruption with a positive Tinel's and Phalen's of the right wrist. Right carpal tunnel syndrome was diagnosed; she was treated with a cock up splint. A March 1998 private orthopedic treatment record notes that the Veteran was seen with complaints of right hand and right wrist pain. It was noted that she was seen in the emergency room earlier that month, and was given a diagnosis of tendonitis associated with right carpal tunnel syndrome. A February 10, 2000 X-Ray showed lateral views of the forearm without evidence of fracture or other significant left forearm abnormality. February 10, 2000 X-Rays of the left elbow, left hand, and left wrist were normal. A February 17, 2000 service treatment record (STR) notes that the Veteran was seen with complaints of left arm pain for seven days with pain from the elbow to the wrist. June 2000 treatment records note the Veteran was four months past a left carpal scaphoid fracture (that was treated with casting). . An October 2008 VA examination noted a history of bilateral carpal tunnel syndrome. The consulting provider opined that the Veteran's CTS was less likely than not related to service. The provider noted that there was no documentation of CTS occurring in service, and that symptoms had not occurred until a number of years after service. The consulting provider opined that it was more likely than not that her occupation since service caused her carpal tunnel syndrome. On September 2015 wrist conditions VA examination degenerative arthritis of the left wrist was diagnosed. It was noted that the Veteran was right hand dominant. No flare-ups were reported. The Veteran reported some functional loss with difficulty opening jars and decreased grip due to pain. Range of motion testing was normal on palmer flexion, dorsiflexion, ulnar deviation, and radial deviation. Pain was noted on all motion, but did not result in functional loss. The consulting provider was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use or a period of time. In a June 2016 correspondence the Veteran's private physician opined that "her wrist fractures are as likely as not to have caused her carpal tunnel syndrome." The physician noted that he had not reviewed any service treatment records. The private physician referred to wrist fractures of the right and left wrists. [STRs show only a left wrist fracture.] On October 2017 peripheral nerves VA examination bilateral carpal tunnel syndrome was diagnosed (it was noted that right CTS was diagnosed in 1998 and left in 2005). The consulting provider opined that it was less likely than not that the Veteran's current CTS was caused or aggravated by service. The provider noted that while the June 2016 correspondence referred to bilateral wrist fractures in service, the Veteran's service treatment records note only a left wrist fracture and bilateral radial head (i.e., elbow) fractures. The examiner noted that right wrist CTS pre-existed service and was not aggravated beyond the natural progression therein. On October 2017 VA wrists conditions examination the left wrist degenerative arthritis was diagnosed. It was noted that the Veteran did not report any flare-ups. Range of motion testing was abnormal for palmer flexion and dorsiflexion with palmer flexion from 0 to 40 degrees [normal 80], dorsiflexion from 0 to 40 degrees [normal 70], ulnar deviation from 0 to 45 degrees [normal 45], and radial deviation from 0 to 20 [normal 20] degrees. Pain was noted on palmer flexion and dorsiflexion range of motion testing . The consulting provider noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The left wrist was not ankylosed. Service Connection for Right Wrist CTS It is not in dispute that the Veteran currently has right wrist carpal tunnel syndrome. What remains to substantiate her claim is competent (medical, because the question is a medical one and beyond the scope of common knowledge or lay observation) evidence that the right carpal tunnel disability was incurred or aggravated during her active duty service. January and March 1998 (nearly two years prior to the Veteran's period of active duty service) private treatment records show she was assigned a diagnosis of right carpal tunnel syndrome. Therefore, right carpal tunnel syndrome is clearly shown to have pre-existed the Veteran's period of active duty service, and whether or not it was incurred in service is not for consideration. June 2016 correspondence from the Veteran's private physician [indicating that the carpal tunnel syndrome is secondary to a right wrist fractured sustained in service is based on an inaccurate factual premise] and has no probative value; a right wrist fracture in service is not shown. The private physician acknowledged that the Veteran's STRs were not reviewed (and the provider also did not reflect awareness of the preservice diagnosis of, and treatment for, right CTS. The analysis turns to whether the Veteran's CTS may be found to have been aggravated in service. Notably, aggravation may not be conceded where the disability is not shown to have undergone an increase in severity during service on the basis of all of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 C.F.R. § 3.306(b). In part, that is a medical question, and requires medical expertise. The only probative (as the private provider's opinion based on an inaccurate factual premise lacks probative value) evidence that directly addresses that question is in the opinions of VA examiners. After reviewing the record (including STRs and post-service private treatment records) the October 2017 VA consulting provider opined that it was less likely than not that the Veteran's right wrist carpal tunnel is related to her service. The provider expressed familiarity with the record, and referred to supporting clinical data (i.e., the absence of treatment for CTS during service), and the opinion is probative evidence in this matter. [The provider also commented on the private opinion to the contrary, noting that it was based on an inaccurate factual premise.] In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's pre-existing right wrist carpal tunnel syndrome increased in severity, was aggravated, during her active duty service. Accordingly, the preponderance of the evidence is against the claim, and service connection for right carpal tunnel syndrome is not warranted. Increased Rating for Residuals of a Left Scaphoid Fracture The Veteran's left (minor) wrist disability has been rated under Codes 5003-5215 for degenerative arthritis and limitation of motion of the affected joint. It is not in dispute that she has limitation of left wrist motion. However, the 10 percent rating currently assigned for the left wrist disability is the maximum schedular rating available for limitation of wrist motion (and encompasses the degree of functional limitation shown to be due to the disability. A higher scheduler rating requires ankylosis of the wrist. Ankylosis of the wrist is not shown by any evidence in the record (and is not alleged). The Veteran's left wrist is not immobile. The October 2017 VA examiner specifically noted that the Veteran did not have ankylosis of the left wrist. Notably, in Johnson v. Brown, 10 Vet. App. 80 (1997) the U.S. Court of Appeals for Veterans Claims (CAVC) held that when a particular joint is evaluated at the maximum level in in terms of limitation of motion, there can be no additional disability due to pain. As the left wrist is currently assigned the maximum schedular rating available for limitation of wrist motion, and ankylosis is not shown, a rating in excess of 10 percent is not warranted. Also noteworthy are the findings on a September 2015 VA examination which found left wrist flexion and extension strength of 4/5 without muscle atrophy, and no significant symptoms other than those noted. Finally, an October 2017 VA examination found flexion and extension strength of 5/5 without muscle atrophy, and no other significant symptoms . Functional impairment comparable to ankylosis is simply not shown. The preponderance of the evidence is against this claim. A rating for residuals of a left scaphoid fracture in excess of 10 percent is not warranted. ORDER Service connection for right wrist carpal tunnel syndrome is denied. A rating in excess of 10 percent for residuals of a left wrist scaphoid fracture is denied. REMAND Further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to her claim. In discussing the etiology of the Veteran's left wrist CTS, a private physician, in June 2016 correspondence, noted "an extremely large amount of scar tissue around her medical nerve which required extensive surgery and epineurolysis." The physician observed that the presence of such a large amount of scar tissue was out of the ordinary and concluded that it was as likely as not that the Veteran's wrist fracture caused her carpal tunnel syndrome. On October 2017 VA examination the consulting provider opined that it was less likely than not that the Veteran's left wrist carpal tunnel was caused by her injury in service because of the length of time between her service and her current carpal tunnel syndrome. The two opinions are conflicting. Neither provider address the rationale in the opinion to the contrary, and the opinions cannot be reconciled without further medical guidance The Veteran's attorney has raised a separate claim of service connection for neurological disability as a residual of the Veteran's left wrist injury in service. That claim is inextricably intertwined with the claim of service connection for left CTS (both appear to seek compensation for the same neurological impairment under alternate theories of entitlement), and must be addressed concurrently. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for the Veteran's record to be forwarded to an appropriate physician (e.g. neurologist) for review and an advisory medical opinion regarding the etiology of the Veteran's left neurological disability (to include CTS). [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] Based on review of the record (and examination of the Veteran, if conducted), the consulting provider should provide an opinion that responds to the following: (a) Please identify by diagnosis each left wrist neurological disability shown by the record (and found on examination, if one is conducted). (b) Please identify the likely etiology for each left wrist neurological disability diagnosed (to specifically include CTS). Specifically, is it at least as likely as not (a 50% or better probability) that it: (i) is related directly to the Veteran's service (was incurred therein) to include as due to injury sustained therein? (b) if not, was caused OR aggravated [the opinion must address aggravation] by her service-connected residuals of left scaphoid fracture? The consulting provider must include rationale with all opinions. The rationale must reconcile the opinion offered with the above-cited opinions already in the record regarding the etiology of the left CTS 2. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and her attorney opportunity to respond and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs