Citation Nr: 1817177 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 00-05 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent from August 19, 2014, to December 31, 2015, for cervical spondylosis, and in excess of 10 percent since January 1, 2016, to include whether the reduction from 20 percent to 10 percent, effective January 1, 2016, was proper. 2. Entitlement to a disability rating in excess of 10 percent for right wrist carpal tunnel syndrome from August 19, 2014, to December 16, 2015, and in excess of 20 percent since December 17, 2015. (The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is addressed in a separate Board decision). REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1977 to December 1979, with additional periods of service in the Army Reserves from December 1979 to April 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2017, the Board remanded the claims on appeal to schedule the Veteran for a Board hearing. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference in October 2017. A transcript of the hearing is included in the claims file. The Veteran submitted additional medical evidence in October 2017; however, he waived his right to have the RO consider this evidence prior to a Board decision. FINDINGS OF FACT 1. A September 2015 rating decision reduced the disability rating for the Veteran's service-connected cervical spondylosis from 20 percent to 10 percent, effective January 1, 2016. 2. As of January 1, 2016, the 20 percent disability rating for the Veteran's cervical spondylosis had been in effect for more than five years. 3. After affording the Veteran the benefit of the doubt, by January 1, 2016, his cervical spondylosis did not show sustained improvement. 4. Throughout the appeal, the Veteran's cervical spondylosis disability has been manifested by pain and limitation of motion; however, forward flexion of the cervical spine was not limited to 15 degrees or less, and favorable or unfavorable ankylosis of the entire cervical spine has not been shown. 5. The Veteran's right wrist carpal tunnel syndrome, which affected his non-dominant or minor extremity, did not manifest with a moderate incomplete paralysis of the median nerve from August 19, 2014, to December 16, 2015, and this disability did not manifest with severe incomplete paralysis of the median nerve since December 17, 2015. CONCLUSIONS OF LAW 1. The criteria for a reduction in a disability rating from 20 percent to 10 percent for cervical spondylosis have not been met as of January 1, 2016, and the criteria for a disability rating in excess of 20 percent for cervical spondylosis have not been met throughout the appeal. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.44, 3.105(e), (i), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5239 (2017). 2. The criteria for a disability rating in excess of 10 percent for right wrist carpal tunnel syndrome from August 19, 2014, to December 16, 2015, and in excess of 20 percent since December 17, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not raised any issues with the duty to notify or 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 duty to assist argument). The Veteran is seeking increased ratings for his service-connected cervical spondylosis and right wrist carpal tunnel syndrome disabilities. Furthermore, he contends that the 20 percent rating for his cervical spondylosis disability should not have been reduced to 10 percent, effective January 1, 2016. Increased Ratings, Generally VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). The Veteran filed increased rating claims for his cervical spondylosis and right wrist carpal tunnel syndrome disabilities that were received by VA on August 19, 2014. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Cervical Spondylosis The Veteran asserts that the disability rating for his neck disability should not have been reduced from 20 percent to 10 percent, effective January 1, 2016, and that this disability should be rated higher than the currently assigned disability ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Spondylosis of the spine is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC. Id. at Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2017). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Board notes that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. The claimant must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and, will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The claimant must also be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). An April 2015 letter provided the Veteran with appropriate notice of a proposed reduction of his cervical spondylosis disability rating from 20 percent to 10 percent. During the ensuing 60-day period, the Veteran did not provide any response, including any request for a predetermination hearing. In a September 2015 rating decision, the RO effectuated the proposed reduction, effective from January 1, 2016. Based upon these facts, the Board finds that the RO's reduction of the Veteran's cervical spondylosis disability rating was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. Records in the claims file show that the 20 percent disability rating for this disability became effective from August 3, 2010, and was undisturbed until the reduction at issue, which, as noted above, was effective from January 1, 2016. Given these facts, the pre-reduction 20 percent disability rating was in effect for more than five years before it was effectively reduced. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). The Court of Veterans Appeals (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Id. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13 (2017)). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which the evidence must show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). However, the Board notes that the rating reduction and rating increase claims are inexorably intertwined in this case. The Veteran appealed the reduction beginning January 1, 2016, and he has contended that his neck disability warrants a rating in excess of 20 percent prior to the reduction, and in excess of 10 percent after the reduction. Thus, the Board shall address both the reduction claim and the increased rating claim simultaneously. VA regulations provide special provisions for cases involving reductions of ratings that have been in effect for five years or more, as is the case here. Under 38 C.F.R. § 3.344(a), rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). The evidence that existed at the time of the initial increase from a 10 percent to a 20 percent disability rating consisted of two VA examinations in August 2010. The Veteran complained of pain in his neck, which was exacerbated by walking, jumping, and running. He used cyclobenzaprine, tramadol, and ibuprofen medication to control his musculoskeletal symptoms. Veteran indicated that he had a neck brace, but he did not wear it to the examination. The Veteran reported that he sought physical therapy for his back, but not for his neck symptoms. His neck symptoms flared up approximately six to seven times per day and could last from one to one-and-a-half hours. He stated that the severity of his neck symptoms go from zero to eight out of a possible ten. A physical examination showed that the Veteran's gait was normal. Palpation of the cervical muscles showed increased muscle tension on the left paravertebral muscles. Initial range of motion testing showed forward flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 30 degrees, left lateral flexion to 40 degrees, right rotation to 80 degrees, and left rotation to 75 degrees. The examiner noted that there was pain with range of motion testing. Repetitive-use testing showed forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, right rotation to 40 degrees, and left rotation to 45 degrees. The examiner noted that the Veteran's pain was increased following repetitive movements, but there was no evidence of fatigue, weakness, or lack of endurance following repetitive movements of the cervical spine. The Veteran was able to stand on his toes and heels, but he could not perform gait on his toes and heels. He was able to perform a tandem gait and a partial squat. During the second VA examination from the same date, the Veteran's cervical spine forward flexion was to 40 degrees, extension to 40 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right and left rotation was to 10 degrees. The examiner noted that the Veteran tended to rotate his whole trunk when he attempted to rotate his neck. This examiner also noted tenderness to palpation in the cervical spine area. Based upon the foregoing findings, a July 2011 rating decision increased the Veteran's disability rating from 10 percent to 20 percent, effective August 3, 2010, i.e., the date of the VA examination reports. The evidentiary basis for the effectuated reduction to a 10 percent disability rating includes the findings and conclusions made during a March 2015 VA examination, during which the Veteran complained of continued neck pain since 1995. He reported that he had increased neck pain while twisting his neck. The examiner noted that the Veteran did not have flare-ups, but that he did have constant pain. Initial range of motion testing showed forward flexion to 35 degrees with pain, extension to 45 degrees with no pain, right lateral flexion to 35 degrees with pain, left lateral flexion to 45 degrees with no pain, and right and left lateral rotation to 80 degrees with no pain. The same results were noted after repetitive-use testing. The examiner noted that the Veteran had less movement than normal and pain on movement, but muscle strength, reflex, and sensory evaluations showed normal results. The examiner noted that the Veteran had additional pain on use but no additional loss of range of motion during flare-ups or use over a period of time. The examiner noted that the Veteran could lift up to 15 pounds, walk half a block and half of a mile during an eight-hour day, and stand for 30 minutes at one time and for one hour during an eight-hour day, but he could sit for an unlimited time. In an April 2015 rating decision, the RO proposed to reduce the disability rating for the Veteran's cervical spondylosis from 20 percent to 10 percent disabling due to the March 2015 VA examination report. In a September 2015 rating decision, the RO effected the proposed reduction, effective January 1, 2016. However, after affording the Veteran the benefit of the doubt, the Board finds that his cervical spondylosis did not show sustained improvement by January 1, 2016, as evidenced by a VA examination that was conducted two months later. Specifically, a March 2016 VA examination report showed the Veteran's complaints of non-constant episodes of pain in his neck and being able to walk only about 10 feet from his house to his car. Initial range of motion testing showed forward flexion to 20 degrees, extension to 45 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 20 degrees. The examiner noted that there was pain in all range of motion testing results and that the Veteran exhibited pain to palpation and tenderness in his neck, but there was no evidence of palpable spasms of any muscle. Following repetitive-use testing, forward flexion was to 20 degrees, extension was to 20 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 20 degrees, right lateral rotation was to 35 degrees, and left lateral rotation was to 20 degrees. The examiner noted that the Veteran did not have guarding, but had muscle spasms and localized tenderness that did not result in an abnormal gait or abnormal spinal contour. Given this evidence, and after affording the Veteran the benefit of the doubt, the Board finds that VA has not met its burden in showing that the Veteran's cervical spondylosis disability had improved by January 1, 2016. See 38 U.S.C. § 1155. As the March 2016 VA examination showed, the Veteran's forward flexion of the cervical spine was limited to 20 degrees of forward flexion, warranting a disability rating of 20 percent. See 38 C.F.R. § 4.71a, DC 5239. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Thus, the reduction in the Veteran's disability rating for cervical spondylosis from 20 percent to 10 percent, effective January 1, 2016, was improper, and the 20 percent disability rating is restored, effective January 1, 2016. Regarding the Veteran's claim for a disability rating in excess of 20 percent for the cervical spine disability, the claims file contains additional VA and private treatment records showing the Veteran's complaints of continued neck pain, including in April 2016. Moreover, the Veteran testified during an August 2016 hearing before a decision review officer (DRO) that his neck did not bother him as much as his back symptoms. He testified that he did not receive any treatment for his neck symptoms, and that he did not wear a neck brace or appliance. However, during the October 2017 Board hearing, the Veteran testified that he was prescribed a neck brace. He stated that he could only hold his neck static for 25 or 30 minutes at a time and that he turned his whole body when he had to look on his right or left side. The Veteran and his attorney testified that the Veteran's cervical spondylosis symptoms warranted a disability rating of 20 percent throughout the appeal. In fact, they contended that they were not seeking a rating in excess of 20 percent for the Veteran's neck disability symptoms. Given this evidence, the Board finds that throughout the appeal, the Veteran's cervical spondylosis disability has been manifested by pain and limitation of motion; however, forward flexion of the cervical spine was not limited to 15 degrees or less, and favorable or unfavorable ankylosis of the entire cervical spine has not been shown. Specifically, the March 2015 and March 2016 VA examination reports showed that the Veteran's forward flexion of the cervical spine was limited to 35 degrees and 20 degrees, respectively, with pain. Furthermore, these examinations showed that the Veteran did not have any ankylosis. While other VA and private treatment records since August 2014 show that the Veteran complained of and was treated for neck pain, this evidence does not indicate that his cervical spine was limited in forward flexion to 15 degrees or less. Accordingly, the Veteran's cervical spondylosis disability did not warrant a rating in excess of 20 percent since August 19, 2014. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that a higher rating is not warranted for the Veteran's disability picture during the appellate period. The range of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported flare-ups of his symptoms and several medical examinations showed that he had additional functional impairment due to pain. However, even though there is evidence of reduced forward flexion and overall range of motion, and even after considering the effects of pain and functional loss, forward flexion is not limited to 15 degrees or less for the cervical spine and the Veteran has not had ankylosis during the appeal period. Thus, a higher rating under these provisions is not approximated in the Veteran's disability picture. The Board has also considered the application of the Formula for Rating IVDS Based on Incapacitating Episodes to the Veteran's symptoms, but determines that a rating under these criteria would not provide a higher benefit. Specifically, none of the evidence indicates that the Veteran experienced incapacitating episodes of IVDS lasting a total of at least four weeks, but less than six weeks, during any 12-month period on appeal. In fact, the Veteran has not alleged any incapacitating episodes during the appeal due to his neck symptoms, and there is no indication in the record that rest was prescribed by a treating physician or that it lasted more than four weeks at a time. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Thus, the application of the Formula for Rating IVDS Based on Incapacitating Episodes would not provide a higher benefit for the Veteran's disability picture. The Board has also considered whether separate ratings are warranted for neurological symptoms associated with the Veteran's neck. However, the record, including the March 2015 and March 2016 VA examinations, shows that the Veteran does not have any neurological symptoms associated with his neck disability that are not already service connected. See 38 C.F.R. § 4.14. Thus, separate ratings for neurological symptoms associated with the Veteran's cervical spondylosis disability are not warranted. Accordingly, the preponderance of the evidence is against a disability rating in excess of 20 percent for cervical spondylosis since August 19, 2014. The benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Wrist Carpal Tunnel Syndrome The Veteran is also seeking a rating in excess of 10 percent for right wrist carpal tunnel syndrome from August 19, 2014, to December 16, 2015, and in excess of 20 percent since December 17, 2015. The medical and lay evidence shows that he is left-handed; thus, his right hand is associated with his minor upper extremity. Under DC 8515, a 10 percent evaluation is assigned for mild incomplete paralysis of the median nerve of the minor hand. A 20 percent evaluation is assigned for moderate incomplete paralysis of the median nerve of the minor hand. A 40 percent evaluation is assigned for severe incomplete paralysis of the median nerve of the minor hand. Finally, a 60 percent evaluation is assigned for complete paralysis of the median nerve of the minor 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 the wrist weakened; pain with trophic disturbances. The Veteran filed a claim for an increased rating in August 2014. A March 2015 VA examination showed that the Veteran complained of bilateral carpal tunnel syndrome symptoms, mostly in his left hand. He indicated that he did not have any constant or intermittent pain, paresthesias and/or dysesthesias, or numbness in his right upper extremity. The examiner noted that the Veteran's muscle strength, reflex, and sensory results were normal. The Phalen's and Tinel's signs were negative. The examiner noted that all of the Veteran's right upper extremity nerves and radicular groups were normal. However, starting in December 2015, the Veteran's right hand symptoms worsened. Specifically, private treatment records in December 2015 show that he complained of bilateral hand pain, tinging, and numbness. He also stated that he dropped objects. The medical professional noted that the Veteran was positive for the Tinel's sign of the carpal tunnel in the right wrist and had mild weakness in his pinch strength, but that he did not have thenar atrophy. A December 2015 private electromyography (EMG) study showed that the Veteran had bilateral median neuropathy at the wrists, which was moderate on the right side and mild on the left side. The impression was that these symptoms were consistent with bilateral carpal tunnel syndrome. The EMG study also showed that the Veteran had ulnar neuropathy across the right elbow that was consistent with cubital tunnel syndrome. A January 2016 private progress note showed that the Veteran complained of tingling and numbness in both hands. A physical evaluation showed no thenar or hypothenar atrophy, full range of motion in the wrist and fingers, a positive Tinel sign over the bilateral medial nerve, cubital tunnel syndrome, and a positive nerve compression sign. Similar results were noted in a February 2016 private progress note. The Veteran underwent a VA examination in March 2016, which showed mild constant pain, paresthesias and/or dysesthesias, and numbness, and moderate intermittent pain in the right upper extremity. Right-hand grip was normal but right-hand pinch showed active movement against some resistance. The examiner noted that the Veteran had normal biceps and triceps reflexes, but that the brachioradialis was hypoactive. The sensory examination showed normal results, the Veteran did not have any trophic changes, and his gait was normal. The examiner determined that the Veteran had moderate incomplete paralysis of the median nerve in the right hand, but that the remainder of the nerves in the right upper extremity were normal. During a November 2016 VA examination, the Veteran complained of continued pain, numbness, weakness, and tingling in both hands. He stated that he took hydrocodone medication to treat his symptoms. He indicated that he had mild constant pain, paresthesias and/or dysesthesias, and numbness, but moderate intermittent pain in the right upper extremity. He had a normal grip but his right-hand pinch showed active movement against some resistance. The Veteran's reflex and sensory examinations showed normal results. A physical evaluation of the Veteran's nerves showed that he had a moderately incomplete paralysis of the median nerve, but the rest of the nerves and radicular groups in the right upper extremity were normal. In addition to this medical evidence, the Veteran testified during the August 2016 DRO hearing that he had tingling, weakness, numbness, and pain in his right hand. He described his symptoms as severe. He indicated that he had problems with holding and carrying objects, and that it was hard to button his shirt and pants. He testified that he had carpal tunnel release surgery on both hands in the 1980s or 1990s, and that he had another surgery on the left hand in February 2016. The Veteran again endorsed symptoms of pain and pins and needles sensations in his right upper extremity during the October 2017 Board hearing. He stated he had difficulty carrying objects, including anything heavier than a gallon. He also testified that it was difficult to tie his shoes. He stated that he had increased pain during flare-ups in his right hand and that he wore a brace during the day and at night. He again stated that he took hydrocodone medication to control his pain symptoms. Based on the medical and lay evidence, the Board finds that the Veteran's right wrist carpal tunnel syndrome, which affected his non-dominant or minor extremity, did not manifest with a moderate incomplete paralysis of the median nerve from August 19, 2014, to December 16, 2015, and this disability did not manifest with severe incomplete paralysis of the median nerve since December 17, 2015. Specifically, the March 2015 VA examination report showed essentially normal findings for the right upper extremity. The Veteran's median nerve symptoms were normal and he did not report any constant or intermittent pain, paresthesias and/or dysesthesias, or numbness. The evidence shows that his symptoms were mild; thus, he does not meet the criteria for a rating in excess of 10 percent from August 19, 2014, to December 16, 2015, under DC 8515. However, the record shows that the Veteran's right wrist symptoms increased in severity in December 2015. Specifically, a private EMG study showed that the Veteran had moderate carpal tunnel syndrome. Furthermore, the March 2016 and November 2016 VA examinations also showed that the Veteran's right wrist carpal tunnel syndrome manifested as incomplete paralysis of the median nerve that was moderate in severity. However, although the Board acknowledges the Veteran's statements that his symptoms are severe and that he has difficulty tying his shoes and buttoning his shirts, these examination reports, as well as the private and VA treatment records, do not indicate that the Veteran's right wrist carpal tunnel syndrome symptoms manifested as severe impairment of the median nerve at any time during the appeal. The VA examiners determined that his symptoms amounted to moderate incomplete impairment of the median nerve following a physical examination and review of the Veteran's self-reported symptoms and pertinent records. Accordingly, the preponderance of the evidence is against a disability rating in excess of 10 percent for right wrist carpal tunnel syndrome from August 19, 2014, to December 16, 2015, and in excess of 20 percent since December 17, 2015. The benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55. ORDER The reduction in the Veteran's disability rating for cervical spondylosis from 20 percent to 10 percent, effective January 1, 2016, was improper, and the 20 percent disability rating is restored; however, a disability rating in excess of 20 percent since August 19, 2014, is denied. A disability rating in excess of 10 percent for right wrist carpal tunnel syndrome from August 19, 2014, to December 16, 2015, and in excess of 20 percent since December 17, 2015, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs