Citation Nr: 1819282 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 01-05 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to higher disability ratings for right upper extremity carpal tunnel syndrome (CTS), rated as 10 percent disabling prior to March 19, 2013, and as 30 percent disabling from that date. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to April 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In June 2005, October 2009, September 2010, and August 2017 the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. The appeal has since been returned to the Board for further appellate review. During the pendency of the appeal, in an August 2016 rating decision, the RO increased the rating assigned to right upper extremity CTS to 30 percent, effective March 19, 2013. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. Prior to March 19, 2013, the Veteran's right upper extremity CTS was manifested by mild incomplete paralysis of the median nerve described as pain, numbness, tingling, and decreased sensation to touch in the fingers; but no moderate incomplete paralysis of the median nerve. 2. From March 19, 2013, the Veteran's right upper extremity CTS has been manifested by mild to moderate incomplete paralysis of the median nerve described as pain, paresthesia and/or dysesthesias, numbness, weakness, and decreased sensation to touch in the hand and fingers; but no severe incomplete paralysis of the median nerve. CONCLUSION OF LAW The criteria for higher disability ratings for right upper extremity CTS, rated as 10 percent disabling prior to March 19, 2013, and as 30 percent disabling from that date, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is seeking higher disability ratings for his right upper extremity CTS currently assigned a 10 percent rating prior to March 19, 2013 and 30 percent disabling from that date under 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2017). This diagnostic code provides ratings for both the "minor" and the "major" wrist. In this context "minor" and "major" refer to the dominant or nondominant side. Here, the Veteran is right hand dominant. See March 2013 and December 2017 VA Examination Reports. As such, the major rating provisions are for application. Diagnostic Code 8515 addresses complete and incomplete paralysis of the medial nerve. Mild incomplete paralysis of the major wrist warrants a 10 percent rating. Moderate incomplete paralysis warrants a 30 percent rating for the major wrist. Severe incomplete paralysis warrants a 50 percent rating for the major wrist. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 70 percent disability rating for the major wrist. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. A. Prior to March 19, 2013 In February 2003, the Veteran was afforded a VA peripheral nerves examination. He reported numbness and tingling in his right hand, 3rd and 4th digits. He reported locking and twitching that caused him to drop items. He also reported the inability to write, push, and turn his wrist. On examination there was less to absent sensation to touch and pinprick of the right 3rd and 4th digits. It was noted that the Veteran was unable to pronate flex his right hand, but had adequate motor function. The same month, in February 2003, the Veteran was afforded a VA joints examination. On examination, there was pain on dorsiflexion of the right wrist. He was unable to endure repetitive movement of his right wrist and grip of his right hand. However, wrist range of motion was normal showing dorsiflexion limited to 70 degrees and palmar flexion limited to 80 degrees. December 2009 VA treatment records contain an EMG study report that showed early right median entrapment neuropathy at the wrist, CTS, primarily affecting the myelin shear of the sensory fiber. The Veteran was afforded a VA miscellaneous neurological disorders examination in December 2009. Motor and sensory exams were normal. Based on an EMG study, a diagnosis of early, mild, right CTS was provided. The examiner emphasized that the Veteran's right CTS was in its early stages, mild, and devoid of any paralysis. As such, clinical findings showed very mild pain and numbness consistent with the Veteran's subjective complaints. The examiner noted that the condition had no impact on activities of daily living. Based on the above, prior to March 19, 2013, the Veteran's right upper extremity CTS was manifested by pain, numbness, tingling, and decreased sensation to touch in the fingers. This has consistently been described as mild incomplete paralysis of the median nerves, which is consistent with the rating criteria for the current assigned10 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. A higher rating would require at least moderate incomplete paralysis of the wrist. See Id. This is not shown here. Instead, the record consistently shows intermittent symptoms and normal range of motion. See February 2003 VA Examination. Notably, a December 2009 EMG study indicated that the Veteran's right upper extremity CTS was mild and in an early stage. At the subsequent VA examination, the examiner emphasized that clinical findings showed very mild pain and numbness consistent with his subjective complaints. The examiner noted that the condition had no impact on activities of daily living. As such, the Board finds no symptoms sufficient to warrant a higher rating based on at least moderate incomplete paralysis of right upper extremity medial nerve due to CTS. B. From March 19, 2013 The Veteran was afforded a VA peripheral nerves condition examination in March 2013. He complained of right hand weakness and numbness of the 4th and 5th digits. Symptoms of mild intermitted pain, paresthesia and/or dysesthesias and numbness were found, but no constant pain. He showed active movement against some resistance in his right grip, and pinch, but otherwise normal muscle strength. There was no muscle atrophy. Reflex exams were hypoactive. Sensory exams showed decreased sensation in the right hand and fingers. It was also noted that his right 3rd and 4th digits, and patchy areas along the wrist and top of hand, were hypoesthetic but no trophic changes. He had a positive right Phalen's test, but negative Tinel's sign. It was noted that the Veteran had mild incomplete paralysis of the right median nerve. No scars were found. As for functional impact, the examiner found that the Veteran could perform employment that allowed him to avoid use of his right hand. In an October 2013 VA addendum, the examiner reiterated that the Veteran has mild, not moderate, incomplete paralysis of the median nerve. The Veteran was afforded a VA examination in December 2017. Current symptoms included pain, weakness, and difficulty writing. Described as mild constant pain, moderate intermittent pain, moderate paresthesia and/or dysesthesias, and mild numbness. He showed active movement against some resistance in his right wrist flexion, grip, and punch, but otherwise normal muscle strength. There was no muscle atrophy. Reflex exams were all normal. Sensory exams showed decreased sensation in the right hand and fingers. He had a positive right Phalen's test, but negative Tinel's sign. No trophic changes. It was noted that the Veteran had moderate incomplete paralysis of the right median nerve. No scars were found. The examiner concludes that the severity of right upper extremity neuropathy was moderate. As for functional impact, the examiner opined that due to right hand motor and sensory abnormalities and dull pain, the Veteran has a weakened grip that makes it more difficult for him to write and use if a job required such tasks. From March 19, 2013, the Veteran's right upper extremity CTS was manifested by pain, paresthesia and/or dysesthesias, numbness, weakness, and decreased sensation to touch in the hand and fingers. This has been described as mild to moderate incomplete paralysis of the median nerves. A higher rating would require at least severe incomplete paralysis of the wrist. See Id. This is not shown here. Notably, the Veteran's CTS disability was described as mild incomplete paralysis on March 2013 VA examination and did not increase to moderate until December 2017. See October 2017 VA Addendum. However, based on the March 2013 VA Examination, the RO increased his disability rating to 30 percent. There is no clinical evidence of severe incomplete paralysis of the median nerve. In December 2017, he showed active movement against some resistance in his right wrist with flexion, grip, and punch; but, muscle strength tests have otherwise been normal. Tinel's signs have also been normal. Further, VA examiners have consistently described the Veteran's symptoms as mild to moderate. As for the applicability of other diagnostic codes, as there is no evidence of scars Diagnostic Codes 7801 to 7805 are not for application. See 38 C.F.R. § 4.118. The Board acknowledges the Veteran's contentions, by and through his representative, of worsening symptoms. See March 2018 Informal Hearing Presentation. Notably, the same argument was raised in June 2017 and the Veteran was subsequently afforded a VA examination in December 2017, which does not support a finding that the CTS condition meets the next higher criteria. As such, the medical evidence for the period from March 19, 2013, has provided highly probative evidence against the claim. For the foregoing reasons, the preponderance of the evidence is against assignment of a rating in excess of 10 percent prior to March 19, 2013, and 30 percent from that date, for the Veteran's right upper extremity CTS, and the appeal as to higher ratings must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. C. Other Considerations The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of right upper extremity CTS, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Here, the Veteran has been in receipt of TDIU since October 2001. There is no indication that the Veteran's TDIU results solely from his right wrist disability. (CONTINUED ON NEXT PAGE) ORDER Entitlement to higher disability ratings for right upper extremity CTS, rated as 10 percent disabling prior to March 19, 2013, and as 30 percent disabling from that date, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs