Citation Nr: 1815331	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-32 207A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to a rating in excess of 30 percent for carpal tunnel syndrome, left hand.

2. Entitlement to an increased rating for carpal tunnel syndrome, right hand, rated as 10 percent disabling prior to July 2, 2014, 20 percent disabling from July 2, 2014 to November 4, 2015, and 40 percent disabling thereafter.

3. Entitlement to an initial compensable rating for bilateral hearing loss.

4. Entitlement to an initial rating in excess of 10 percent for hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Timmerman, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from July 1966 to January 1968. 

This case is before the Board of Veterans' Appeals (Board) on appeal from April 2010 and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

 In October 2017, the Veteran testified at a video-conference hearing before the undersigned. A transcript of the hearing is of record.


VETERAN'S CONTENTIONS

The Veteran claims that his carpal tunnel syndrome (CTS) has resulted in the loss of use of his hands. He testified at an October 2017 Board hearing that his CTS often causes him to drop things at home; that he cannot open drawers or hold onto the phone; and that he cannot pick up small items such as coins or paper clips. He testified that he can use his left hand for gross motor tasks, but that after exertion the hand "freezes up" for several minutes. He testified that he needs help to use the bathroom, and that he employs his son's assistance to eat.

The Veteran also claims that his hearing loss has worsened substantially since his last evaluation in April 2010. At the October 2017 Board hearing, he testified that he had gone through several hearing aids since that time, and that he could not understand people speaking in public.

Finally, the Veteran claims that his hypertension has warranted a 20 percent rating since at least 2009. At the October 2017 Board hearing, he asserted that an October 2009 VA examination was inadequate, because the examiner failed to review all of his records.


FINDINGS OF FACT

1. The Veteran is right-hand dominant.

2. At a July 2010 VA examination, the Veteran complained of fatigue and dysesthesias in his left hand.  Sensory examination revealed normal sensation with the exception of positive Phalen's sign and positive Tinel's sign.  Motor examination showed 4/5 grip strength without any gap between thumb and fingers on attempted grip.  Examination of the right hand revealed no abnormalities.

3. At a July 2014 VA examination, the examiner recorded the following signs and symptoms of the Veteran's carpal tunnel syndrome, left upper extremity: dull, intermittent pain; moderate paresthesias and/or dysesthesias; moderate numbness; 4/5 wrist flexion, wrist extension, and grip strength; 3/5 pinch strength; hypothenar and thenar muscular atrophy; normal reflexes; normal light touch sensation; positive Phalen's sign; positive Tinel's sign; painful limitation of motion for all fingers; and a gap of less than an inch between the fingertips and palm on attempted grip. The examiner noted no constant pain, no trophic changes, and no gap between thumb and fingers on attempted grip. 

4. At the July 2014 VA examination, the examiner recorded the following signs and symptoms of the Veteran's carpal tunnel syndrome, right upper extremity: dull intermittent pain; moderate paresthesias and/or dysesthesias; moderate numbness; 3/5 wrist flexion and extension strength; 1/5 grip and pinch strength; hypothenar and thenar muscular atrophy; absent biceps deep tendon reflex; hypoactive triceps and brachioradialis deep tendon reflex; normal light touch sensation; and positive Tinel's sign. The examiner noted no constant pain and no trophic changes. The examiner also noted that Phalen's sign could not be tested on the right upper extremity "due to other medical conditions."

5. Prior to June 30, 2014, the Veteran's bilateral hearing loss was manifested by impairment of auditory acuity that was noncompensably disabling.

6. From June 30, 2014 to August 21, 2017, the Veteran's bilateral hearing loss was manifested by impairment of auditory acuity that was no more than 10 percent disabling.

7. Since August 21, 2017, the Veteran's bilateral hearing loss has been manifested by impairment of auditory acuity that is no more than 60 percent disabling.

8. Throughout the claim period, the Veteran's systolic blood pressure has been predominantly less than 200; and his diastolic pressure has been predominantly less than 110.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for carpal tunnel syndrome, left hand, have not been met. 38 U.S.C. §§ 1155, 5107 (2012);  38 C.F.R. §§ 4.3, 4.120, 4.124a, Diagnostic Code 8513 (2017).

2. Since July 2, 2014, the criteria for an increased rating of 70 percent, but no higher, for carpal tunnel syndrome, right hand, have been met. 38 U.S.C. §§ 1155, 5107 (2012);  38 C.F.R. §§ 4.3, 4.120, 4.124a, Diagnostic Code 8513 (2017).

3. Prior to June 30, 2014, the criteria for a compensable rating for bilateral hearing loss were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017).

4. From June 30, 2014 to August 21, 2017, the criteria for an increased rating of 10 percent, but no higher, for bilateral hearing loss were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017).

5. Since August 21, 2017, the criteria for an increased rating of 60 percent, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86 (2017).

6. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012);  38 C.F.R. §§ 4.3, 4.104, DC 7101 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Carpal Tunnel Syndrome

The Veteran's CTS is currently rated under Diagnostic Code 8513. Under that code, a rating in excess of 30 percent for the nondominant extremity requires severe incomplete paralysis. The Board finds that a rating in excess of 30 percent is not warranted for the Veteran's CTS, left hand, because there is no evidence of symptoms indicating severe incomplete paralysis, such as constant radiating pain, trophic changes, severe numbness, or marked muscular atrophy.

However, as noted above, the Board finds that an increased rating of 70 percent, but no higher, is warranted for CTS, right hand, effective July 2, 2014. A rating in excess of 70 percent for the dominant extremity requires complete paralysis. The Board notes that the July 2014 examiner recorded 3/5 wrist flexion and extension strength, indicating "active movement against gravity." This is inconsistent with complete paralysis of the Veteran's right hand. Therefore, because the Veteran's CTS, right hand, is not manifested by complete paralysis, the Board finds that a rating in excess of 70 percent is not warranted.

In this regard, the Board acknowledges the Veteran's claim that his CTS amounts to the loss of use of his hands. Specifically, the Veteran has drawn attention to the July 2004 opinion of a VA clinician that the Veteran's "right upper extremity is nonfunctional," which has forced the Veteran to rely exclusively on his left hand for decades, leading to the "loss of use of grip and pinch strength in his left hand." 

For VA purposes, "loss of use of a hand or a foot . . . will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance." As the undersigned noted at the October 2017 hearing, given that the Veteran still retains some ability to use his hands, as indicated by his hearing testimony and the July 2014 VA examination, the Board cannot make a finding that his current level of disability is equivalent to having his hands amputated and replaced by prosthetics. Rather, the Board finds that the severity of the Veteran's disability is adequately contemplated by the ratings of 70 and 30 percent disability (right and left hand, respectively) adjudicated herein.

Bilateral Hearing Loss

Upon review of all the evidence of record, the Board finds that a compensable rating is not warranted for the Veteran's service-connected bilateral hearing loss prior to June 30, 2014. However, the Board finds that a rating of 10 percent is warranted for the same from June 30, 2015 to August 21, 2017, and that a rating of 60 percent is warranted from August 21, 2017 on.

Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran has undergone two VA examinations and one private audiological examination during the claim period. An audiogram produced at a November 2009 VA examination indicated puretone thresholds of 20, 25, 80, and 80 decibels in the right ear and 15, 35, 80, and 75 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz ("specified frequencies") respectively, resulting in an average puretone threshold of 51.25 decibels in each ear. A speech audiometry test revealed speech recognition ability of 80 percent and 84 percent in the right and left ears, respectively. Applying these results to Table VI of 38 C.F.R. § 4.85 yields a finding of Level IV and Level II hearing loss in the right and left ears, respectively. Where hearing loss is at Level II in the better ear and Level IV in the worse ear, a noncompensable disability rating is assigned under Table VII.

An audiogram produced at a June 2014 VA examination indicated puretone thresholds of 25, 30, 80, and 90 decibels in the right ear and 15, 45, 75, and 70 decibels in the left ear at the specified frequencies, resulting in an average puretone threshold of 56.25 and 51.25 decibels in the right and left ears, respectively. The examiner indicated that the use of a word recognition score was not appropriate for the Veteran, due to "language difficulties, cognitive problems, inconsistent word recognition scores, etc." See 38 C.F.R. § 4.85 ("Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc."). Applying the results of the puretone threshold tests alone to Table VIa of 38 C.F.R. § 4.85 yields a finding of Level IV and Level III hearing loss in the right and left ears, respectively. Where hearing loss is at Level III in the better ear and Level IV in the worse ear, a 10 percent disability rating is assigned under Table VII.

An audiogram produced at an August 2017 private examination indicated puretone thresholds of 70, 60, 90, and 100 decibels in the right ear and 55, 70, 90, and 90 decibels in the left ear at the specified frequencies, resulting in an average puretone threshold of 80 and 76.25 decibels in the right and left ears, respectively. A speech audiometry test revealed speech recognition ability of 24 percent and 64 percent in the right and left ears, respectively. Applying these results to Table VI of 38 C.F.R. § 4.85 yields a finding of Level XI and Level VII hearing loss in the right and left ears, respectively. Where hearing loss is at Level VII in the better ear and Level XI in the worse ear, a 60 percent disability rating is assigned under Table VII.

The Board acknowledges the possibility that the poor speech discrimination scores recorded by the August 2017 private examiner may have resulted from the "language difficulties [and] cognitive problems" identified by the June 2014 VA examiner. However, the Board cannot on the basis of the available evidence distinguish between the effects of the Veteran's service-connected hearing loss and those of any non-service-connected disability as regards his speech discrimination scores. Therefore, resolving reasonable doubt in the Veteran's favor, the Board attributes those scores entirely to the Veteran's service-connected hearing loss. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998).

III. Hypertension

Under DC 7101, a rating in excess of 10 percent requires systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more.  Throughout the pendency of the appeal, the Veteran's systolic pressure has measured less than 200, and his diastolic pressure less than 110.  Therefore, the Board finds that a rating in excess of 10 percent is not warranted.


ORDER

A rating in excess of 30 percent for carpal tunnel syndrome, left hand is denied.

A rating of 70 percent from July 2, 2014 on for carpal tunnel syndrome, right hand, is granted.

A compensable rating for bilateral hearing loss is denied, for the period before June 30, 2014.

An increased rating of 10 percent for bilateral hearing loss is granted, for the period from June 30, 2014 to August 21, 2017.

An increased rating of 60 percent for bilateral hearing loss is granted, from August 21, 2017 on.

A rating in excess of 10 percent for hypertension is denied.




____________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs