Citation Nr: 1816320 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 12-14 448A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent for right carpal tunnel syndrome. 2. Entitlement to a rating in excess of 20 percent for left carpal tunnel syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Navy with active duty from August 1980 to August 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a June 2012 VA Form 9 Substantive Appeal, the Veteran requested a hearing before a Veterans Law Judge. However, in August 2014, the Veteran subsequently withdrew his request and therefore, the Board deems the hearing request to be withdrawn. 38 C.F.R. § 20.704(e)(2017). By way of background, the Board denied the Veteran's claims for entitlement to increased ratings for his service-connected right and left carpal tunnel syndrome in December 2014. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties to vacate and remand the December 2014 Board decision based on the failure of the Board to discuss all potentially applicable Diagnostic Codes for the Veteran's condition. This claim was most recently before the Board in May 2017, at which time it was remanded for further development to include a new VA examination. As substantial compliance with the Board's May 2017 remand directives have been completed, the claim has now returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's right carpal tunnel syndrome is manifested by moderate incomplete paralysis of the lower radicular group of the major (dominant) arm. 2. The Veteran's left carpal tunnel syndrome is manifested by moderate incomplete paralysis of the lower radicular group of the minor (non-dominant) arm. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for right carpal tunnel syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8512 (2017). 2. The criteria for a rating of 30 percent, but no higher, for left carpal tunnel syndrome have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8512 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and his representative assert that the Veteran is entitled to an increased rating for his right and left carpal tunnel syndrome. As these issues involve application of similar facts to the same law, the Board will address these two issues together. The Board notes that the Veteran's right and left carpal tunnel syndrome are currently rated under Diagnostic Code 8516 for the ulnar nerve. However, the Board will consider any potentially applicable Diagnostic Code in its analysis as set forth below. Disease of the peripheral nerves of the upper extremities are rated under 38 C.F.R. § 4.142a, Diagnostic Codes 8510 to 8719. The Board points out that the Veteran's right side is his dominant side and is therefore considered the "major" extremity in the context of these Codes and the Veteran's left side is considered his "minor" side. There are several potentially applicable Diagnostic Codes for the Veteran's service-connected bilateral carpal tunnel syndrome as more than one nerve is involved. Specifically, the Diagnostic Codes available for consideration include Diagnostic Code 8512 which applies to the lower radicular group, Diagnostic Code 8515 which applies to the median nerve, and Diagnostic Code 8516 which applies to the ulnar nerve. Diagnostic Code 8512 provides that mild incomplete paralysis of the lower radicular group warrants a 20 percent rating on the major side and a 20 percent rating on the minor side. Moderate incomplete paralysis warrants a 40 percent rating on the major side and 30 percent on the minor side. Severe incomplete paralysis warrants a 50 percent rating on the major side and 40 percent on the minor side. Complete paralysis of the lower radicular group warrants the maximum 70 percent rating on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Diagnostic Code 8515 provides that mild incomplete paralysis of the medial nerve warrants a 20 percent rating on the major side and the minor side. Moderate incomplete paralysis warrants a 30 percent rating on the major side and a 20 percent rating on the minor side. Severe incomplete paralysis warrants a 50 percent rating on the major side and a 40 percent rating on the minor side. Complete paralysis of the median nerve 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 the index finger, feeble flexion of middle finger, cannot make a fist, index and middle fingers remand 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 warrants the maximum rating of 70 percent for the major side and 60 percent for the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Diagnostic Code 8516 provides that mild incomplete paralysis of the ulnar nerve warrants a 10 percent evaluation on the major side and the minor side. Moderate incomplete paralysis warrants a 30 percent rating for the major side and 20 percent for the minor side. Severe incomplete paralysis warrants a 40 percent rating of the major side and a 30 percent rating for the minor side. Complete paralysis of the ulnar nerve, with the "Griffith claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of the wrist weakened; warrants the maximum 60 percent for the major side and 50 percent for the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8516. The Board observes that 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 (2017). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the 2012); 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis" with this or other nerve injuries indicates a degree of lost or impaired function substantially less than the type picture 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 the most, the moderate degree. 38 C.F.R. § 4.124a. The Diagnostic Codes rated pursuant to 38 C.F.R. § 4.124a also contain a note stating that combined nerve injuries should be rated by reference to the major involvement or, if sufficient in extent, consider radicular group ratings. VA Primary Care Notes from October 2009 and March 2010 show that physical examinations were conducted. In regards to neurological findings, the examinations demonstrated normal sensation, normal strength in upper and lower extremities, normal reflexes in the upper extremity and lower extremity, and normal gait and coordination. The March 2010 examination added that the Veteran's bilateral carpal tunnel syndrome manifested with pain in both hands. During a June 2010 Occupational Therapy Consult, the Veteran stated that he continued to have numbness and weakness in both hands, and that he wore a splint three to four times per week overnight. An August 2010 Neurology Note demonstrated that EMG testing was conducted and revealed moderate bilateral carpal tunnel syndrome, worse on the right, with chronic axonal loss. There was no evidence of on-going denervation. The Veteran was first afforded a VA examination in connection with his claim in February 2011. The Veteran reported that since the year 2000 he had intermittent numbness throughout both hands and all of the digits. This numbness is prominent when he first awakes but may also recur throughout the day. He intermittently wears wrist splints at night, with variable effect on the numbness; he does not receive any other treatment. He does not have any significant pain in his hands except for discomfort in the right long and ring fingers, which has been present for only a couple weeks. He feels that he has some generalized weakness in his hands. He stated that he has difficulty in buttoning his left sleeve with the use of his right hand, but otherwise has no other functional impact on daily life. At this examination, the examiner did not provide an opinion as to the severity of the Veteran's service-connected disability and simply noted that an August 2010 Electromyography (EMG) test indicated mild ulnar neuropathy and moderate bilateral carpal tunnel. See, February 2011 VA examination. A June 2013 EMG Consult reveals the results of the Veteran's latest EMG testing. The Veteran reported that every morning when he awakes he has pain in both wrists and numbness of all the fingers. He stated that he felt his hands were mildly weak and that he has difficulty writing. The study revealed moderate to severe carpal tunnel syndrome. There was no evidence of ongoing denervation seen in either abductor pollicis brevis muscle. It was noted that the results of this EMG study were slightly worse than the results of his last EMG study from 2010. The Veteran was afforded VA examinations in March 2016 and December 2016, which are inadequate for rating purposes. However, the examination reports have continued to indicate that the Veteran's right and left carpal tunnel syndrome was manifested by pain, moderate parathesias and numbness, and moderate incomplete paralysis of both the ulnar and median nerves. See, VA examinations dated March 2016 and December 2016. The Veteran was most recently provided a VA examination in connection with his claims in June 2017. During this examination, the Veteran reported mild constant pain, and mild parathesias and/or dysthesias of each upper extremity. Overall, the examiner noted that the radial nerve was normal, but concluded that both the ulnar and median nerves were impacted by moderate incomplete paralysis in each extremity. See, June 2017 VA examination. Based on the above, the Board finds that a rating of 40 percent is warranted for moderate incomplete paralysis of the ulnar and median nerves of the Veteran's right major extremity. In this regard, the Board notes that moderate incomplete paralysis of the ulnar nerve, major side, warrants 30 percent rating and that moderate incomplete paralysis of the median nerve, major side, also warrants a 30 percent rating. However, the Board finds that Diagnostic Code 8512 is more applicable in the present case as the Veteran has combined nerve injuries of the lower radicular group and accordingly, a 40 percent rating is therefore warranted for right carpal tunnel syndrome. 38 C.F.R. § 4.124a, DC 8512, 8515, 8516. The Board also finds that a rating of 30 percent is warranted for moderate incomplete paralysis of the ulnar and median nerves of the Veteran's left minor side extremity under DC 8512. In this regard, the Board notes that moderate incomplete paralysis of the ulnar nerve, minor, warrants 20 percent rating and that moderate incomplete paralysis of the median nerve, major side, also warrants a 20 percent rating. However, the Board finds that Diagnostic Code 8512 is more applicable in the present case as the Veteran has combined nerve injuries of the lower radicular group and accordingly, a 30 percent rating is therefore warranted for left carpal tunnel syndrome. 38 C.F.R. § 4.124a, DC 8512, 8515, 8516. Separate ratings are not in order as they are precluded by the note in 38 C.F.R. § 4.124a that bars separate ratings for upper extremity peripheral nerve disabilities that involve multiple nerves. Additionally, even in absence of this note, separate ratings cannot be assigned as the symptomatology associate with the Veteran's disability has not been shown to be separate and distinct. The symptomatology such as pain, decreased grip strength, and tingling is overlapping and duplicative. Pyramiding, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes is to be avoided pursuant to 38 C.F.R. § 4.14 (2017). Additionally, the Board finds that the evidence supports moderate incomplete paralysis during the entire period on appeal and therefore, staged ratings are not appropriate in this case. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102 , 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a rating of 40 percent, but no higher, for right carpal tunnel syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating of 30 percent, but no higher, for left carpal tunnel syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ A.J. Spector Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs