Citation Nr: 1820599	
Decision Date: 04/05/18    Archive Date: 04/16/18

DOCKET NO. 12-10 157	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to a compensable rating for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016.

2. Entitlement to an increased rating in excess of 30 percent for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016.

3. Entitlement to a compensable rating for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016.

4. Entitlement to an increased rating in excess of 20 percent for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016.


REPRESENTATION

Appellant represented by:	The American Legion
ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1996 to February 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In November 2016, the Board remanded the Veteran's issues for additional development. The case has since returned to the Board for further consideration.


FINDINGS OF FACT

1. Prior to December 20, 2016, numbness of the right hand, possibly secondary to early carpal tunnel syndrome, has been manifested by no more than mild incomplete paralysis.

2. Since December 20, 2016, numbness of the right hand, possibly secondary to early carpal tunnel syndrome, has been manifested by no more than moderate incomplete paralysis.

3. Prior to December 20, 2016, numbness of the left hand, possibly secondary to early carpal tunnel syndrome, has been manifested by no more than mild incomplete paralysis.

4. Since December 20, 2016, numbness of the left hand, possibly secondary to early carpal tunnel syndrome, has been manifested by no more than moderate incomplete paralysis.
CONCLUSIONS OF LAW

1. The criteria for entitlement to a 10 percent rating, but no greater, for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.124a, DC 5299-8515 (2017).

2. The criteria for entitlement to an increased rating in excess of 30 percent for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8515 (2017).

3. The criteria for entitlement to a 10 percent rating, but no greater, for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.20, 4.27, 4.124a, DC 5299-8515 (2017).

4. The criteria for entitlement to an increased rating in excess of 20 percent for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8515 (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 duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

As noted above, in November 2016, the Board remanded the increased rating issues to the AOJ for additional development. The Veteran received a VA examination in connection with his claims. Under the circumstances, the Board finds that there has been substantial compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

II. Increased Ratings 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017).

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's numbness of the right and left hands, possibly secondary to early carpal tunnel syndrome are rated under DC 5299-8515 prior to December 20, 2016, indicating that an unlisted disability rated on the basis of paralysis of the median nerve. See 38 C.F.R. §§ 4.20, 4.27. Since December 20, 2016, the Veteran's disabilities are rated under DC 8515, indicating paralysis of the median nerve. Ratings are for mild, moderate, severe, and complete are based on involvement of the major (dominant) hand or the minor hand. The record reflects that the Veteran is right-handed.

Pursuant to diagnostic Code 8515 for the dominant (right) side, a 10 percent evaluation is warranted when there is mild incomplete paralysis of the median nerve. A 30 percent evaluation is warranted when there is moderate incomplete paralysis. A 50 percent rating is provided for severe incomplete paralysis. A maximum 70 percent evaluation is warranted for complete paralysis of the median nerve. 38 C.F.R. § 4.124a, DC 8515.

For the non-dominant (left) side, a 10 percent evaluation is warranted when there is mild incomplete paralysis of the median nerve. A 20 percent evaluation is warranted when there is moderate incomplete paralysis. A 40 percent rating is provided for severe incomplete paralysis. A maximum 60 percent evaluation is warranted for complete paralysis of the median nerve. Id.

Complete paralysis of the median nerve contemplates the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscle 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 wrist weakened; and pain with trophic disturbances.

The Board notes, neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with median nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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.

In a September 2002 rating decision, the Veteran was granted service connection for numbness of the right hand, and numbness of the left hand, both possibly secondary to early carpal tunnel syndrome, with noncompensable ratings assigned for each hand, effective February 20, 2002. The Veteran is not service-connected for early carpal tunnel syndrome. In March 2010, the Veteran applied for an increased rating for these disabilities. In the November 2010 rating decision currently on appeal, the noncompensable ratings for each hand were continued. After the November 2016 Board decision remanded the case for further development, a January 2017 rating decision granted a 30 percent rating for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, effective December 20, 2016; and a 20 percent rating for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, effective December 20, 2016.

A. Prior to December 20, 2016

After a careful review of the evidence of record, the Board finds that the evidence establishes entitlement to a 10 percent rating, but no greater, for numbness of the right and left hands, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016. The reasons follow.

The evidence indicates that during this part of appeal period, the numbness of the right and left hands, possibly secondary to early carpal tunnel syndrome, was manifested by mild incomplete paralysis. For example, in the September 2010 VA examination, the examiner noted that the Veteran reported flare-ups that occurred two to three times a day and last for up to half an hour, with a reported pain level of 8 out of 10 (with 10 being the greatest). The Veteran reported that the flare-ups occurred after increased activity and were relieved with rest and stretching. The flare-ups were reported to consist of pain, weakness, and fatigue, but there was no reported functional loss.

During the examination, the examiner noted that sensation to monofilament, pin prick, and vibration was normal. The Veteran demonstrated a score of 2/4 for deep tendon reflexes, but had normal muscle strength in all muscle groups, with no tenderness to palpation in the joint areas. The examiner noted that no muscle atrophy was identified on examination. Range of motion for the fingers was found to be normal, except that painful motion was found on the little finger of the right hand; and sensation on the fingers was normal except for readings of 4/5 on the middle and little fingers of the left hand, and the little finger of the right hand. The Veteran was diagnosed with bilateral hand paresthesias (numbness).

During a January 2013 visit to a VA facility, the Veteran continued to report numbness in the bilateral finger tips, and mentioned that writing while holding a pen caused him pain. The Veteran reported that pain was at a level of 10/10 when it manifested. The examiner noted no thenar eminence atrophy or weakness, and normal sensation. Electrodiagnostic studies showed normal results, however, the examiner noted that carpal tunnel syndrome is a constellation of symptoms, which the Veteran appeared to have. The examiner noted the Veteran's effective use of a brace to alleviate his symptoms.

In this case, the Board finds that prior to December 20, 2016, a 10 percent rating is warranted for both numbness in the right hand and in the left hand. Specifically, the Veteran's reports of pain, flare-ups, fatigue, weakness and functional loss, in conjunction with objective medical evidence of bilateral paresthesias, numbness, decreased sensation, decreased reflexes, and the medically recommended use of a brace, tend to weigh in favor of a finding of mild incomplete paralysis of the median nerve on both sides.

A rating greater than 10 percent is not warranted, however, as the record does not demonstrate moderate incomplete paralysis of the median nerve in either hand for this part of the appeal period. For example, in the September 2010 VA examination, the examiner noted that that sensation to monofilament, pin prick, and vibration was normal; motor strength was normal; no atrophy was observed; there was no tenderness to palpation in the joint areas; and the Veteran had a full range of motion in his hands. In the January 2013 VA treatment record, normal sensation was noted, aside from the numbness in the fingers, and the examiner noted there was no muscle atrophy, thenar eminence atrophy or thenar eminence weakness. Accordingly, the Board finds that these symptoms tend to weigh against a finding of moderate incomplete paralysis of the median nerve, on either side.

To the extent that the Board is denying entitlement to a rating in excess of 10 percent, it specifically notes that the reports of use of a brace, hypoactive reflexes, decreased sensation, numbness, paresthesias, flare-ups, functional loss, fatigue, weakness, and severe intermittent pain have been considered in evaluating the Veteran's neurological manifestations. See 38 C.F.R. § 4.6 (Board must evaluate all of the evidence, to the end that its decisions are "equitable and just"). The Board finds that the 10 percent rating contemplates these symptoms.

In sum, the Board concludes that the preponderance of the evidence of record supports a 10 percent rating, but no greater, for numbness of the right hand, possibly secondary to early carpal tunnel syndrome prior to December 20, 2016; and supports a 10 percent rating, but no greater, for numbness of the left hand, possibly secondary to early carpal tunnel syndrome prior to December 20, 2016. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence.

B. Since December 20, 2016

After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement for a rating in excess of 30 percent for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016; and against the claim entitlement for a rating in excess of 20 percent for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016. The reasons follow.

The evidence indicates that during the appeal period, the Veteran's bilateral numbness of the hands was not manifested by severe incomplete paralysis. At worst, the Veteran's numbness of the hands demonstrated moderate incomplete paralysis of the median nerve on each side. For example, in the Veteran's December 2016 VA examination, the examiner noted that the Veteran experienced moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the hands on both sides. The examination report also shows that the Veteran had normal muscle strength and normal reflexes on both hands. The Veteran demonstrated decreased sensory results for the hands and fingers. The examiner noted involvement of the median nerve, and stated that the median nerve was characterized by moderate incomplete paralysis on both sides.

A 50 percent disability rating for the right hand, and a 40 percent disability for the left hand, is not warranted because the Veteran's symptoms are not indicative of a severe incomplete paralysis. Rather, the preponderance of the evidence during the period on appeal does not support that the Veteran's numbness of the right and left hands produced objective symptoms such as decreased muscle strength, absence of sensation, abnormal muscle tone, absence of reflex, or a characterization of severe incomplete paralysis of the median nerve. Reviewing the evidence, the Board finds that the overall disability picture for numbness of the hands does not more closely approximate a 50 percent rating for the right hand, or 40 percent rating for the left hand under DC 8515. 38 C.F.R. §§ 4.7, 4.124a (2017). Thus, ratings in excess of 30 percent for the right hand, and 20 percent for the left hand, are not warranted.

To the extent that the Board is denying entitlement to a disability rating in excess of 30 percent for the right hand, and 20 percent for the left hand, it specifically notes that the reports of moderate constant pain, moderate intermittent pain, numbness, paresthesias and/or dysesthesias, and pain during motion have been considered in evaluating the Veteran's neurological manifestations. See 38 C.F.R. § 4.6 (Board must evaluate all of the evidence, to the end that its decisions are "equitable and just"). The Board finds that the respective 30 percent and 20 percent ratings for the right and left hands contemplates these moderate symptoms.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for entitlement to a rating in excess of 30 percent for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016; and against the claim for entitlement to a rating in excess of 20 percent for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence.


ORDER

Entitlement to a 10 percent rating, but no greater, for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016, is granted.

Entitlement to a rating in excess of 30 percent for numbness of the right hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016, is denied.

Entitlement to a 10 percent rating, but no greater, for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, prior to December 20, 2016, is granted.

Entitlement to a rating in excess of 20 percent for numbness of the left hand, possibly secondary to early carpal tunnel syndrome, since December 20, 2016, is denied.




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A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs