Citation Nr: 1825366 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-35 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the left wrist. 3. Entitlement to service connection for a disability manifested by left elbow and shoulder pain, to include as due to carpal tunnel syndrome of the left wrist. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of the appeal now resides with the RO in Montgomery, Alabama. In an August 2014 rating decision, the Veteran's rating was increased to 70 percent throughout the appeal period. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran was scheduled for a hearing in front of the Board in February 2018, but he failed to appear. As he has not provided good cause for his failure to appear or requested another hearing, VA's duty to provide him with a hearing has been met. 38 C.F.R. § 20.700 (2017). FINDINGS OF FACT 1. During the appeal period, the Veteran's psychiatric disorder has been characterized by anxiety, paranoia, social isolation, and an inability to establish and maintain effective relationships. Total occupational and social impairment have not been shown. 2. During the appeal period, the Veteran's carpal tunnel syndrome has been characterized by incomplete paralysis of a moderate, which affects his wrist and his arm; incomplete paralysis of a severe nature has not been shown. 3. The Veteran's elbow and shoulder pain are not a distinct disability; rather, the pain is part of the Veteran's carpal tunnel syndrome. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a 20 percent rating, but no more, for carpal tunnel syndrome of the left wrist, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, 4.124a, DC 5215-8515 (2017). 3. The criteria for establishing entitlement to service connection for a disability manifested by left elbow and shoulder pain, to include as due to carpal tunnel syndrome of the left wrist, have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, private, and VA treatment records are associated with the claims file. Additionally, multiple VA examinations are associated with the claims file. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). PTSD The Veteran currently receives a 70 percent rating for PTSD under 38 C.F.R. § 4.130, DC 9411. In order to warrant a 100 percent rating, the evidence must show total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434 (2017). Based on the evidence of record, the Board finds that a 100 percent rating is not warranted. Despite the severity of the Veteran's psychiatric disorder, there have been few reports of the symptoms listed in the criteria for a 100 percent rating. First, the Veteran's VA examinations and treatment records do not indicate a gross impairment in thought processes or communication. Instead, he consistently maintained a normal appearance along with an alert and oriented mental status, his speech tone, rate, and rhythm have been consistently within normal limits. The Board acknowledges that the Veteran has a history of paranoia and suspiciousness, but these attributes do not rise to the level of gross impairment of his thought process. Likewise, the Veteran's state of near-constant depression and emotional numbing are already fully accounted for in the 70 percent rating criteria. The Veteran has not suffered from delusions, hallucinations, or grossly inappropriate behavior as demonstrated by both clinical evidence and the Veteran's own statements. There are no indications that the Veteran had any homicidal ideations during the appeal period. Additionally, the Veteran never admitted to any suicidal ideations. The Board acknowledges that a physician, citing the fact that the Veteran was severely depressed and distressed, determined in December 2012 that his overall psychological profile indicated that he may have harbored suicidal and homicidal ideations without a plan. Nevertheless, there is not sufficient evidence to show that the Veteran presents a persistent danger of hurting herself or others. In any event, such symptoms are adequately contemplated in his currently-assigned 70 percent rating. Finally, the Board concludes that although Veteran has exhibited some memory loss, his symptoms do not rise to the level of total occupational and social impairment. For example, a physician noted in April 2012 that although he was oriented to time and place, he forgot the time of his appointment and arrived very early. The 70 percent rating criteria already fully encompasses mild memory loss. The Board notes that the Veteran has not been fully disoriented to time or place or forgotten the names of close relatives or his own name. Therefore, even after considering all of the above-listed factors, the Board finds that the Veteran's symptomatology, when considered together, does not warrant a 100 percent rating. Indeed, many of the objective symptoms for a 100 percent rating, to include gross impairment in thought processes and communication and disorientation to time or place, have not been shown. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of social and occupational inadaptability. There is insufficient evidence to show that a 100 percent rating is warranted based on overall social or occupational impairment. In this regard, there is no question that the Veteran suffers from severe social impairment. The November 2010 VA examiner noted that the Veteran quickly and easily becomes irritated and does not trust others. As of April 2012, he was determined to have "extreme" difficulties interacting with others and maintaining gainful relationships. Nevertheless, by August 2013, he moved to another city to live with his mother, who he has a good relationship with. The claims file demonstrates the Veteran's continued, albeit limited, relationships with his family, which leads the Board to conclude that he does not exhibit total social impairment. Moreover, while the Veteran has experienced some additional occupational impairment, the Board notes that the Veteran has already been granted entitlement to total disability based on individual unemployability (TDIU) as of the initial grant date of service connection for PTSD. Therefore, his occupational impairment is already subject to compensation. Carpal Tunnel Syndrome of the Left Wrist The Veteran currently receives a 10 percent rating for carpal tunnel syndrome of the left wrist under 38 C.F.R. § 4.71a, 4.124a, DC 5215-8515 (addressing limitation of motion of the wrist as analogous to paralysis of the median nerve). As the Veteran's disability is an unlisted condition, and has mostly been characterized by its effect on the Veteran's peripheral nerves, the Board finds that this analogous rating is appropriate. See 38 C.F.R. § 4.20. The Veteran is right-handed. Under this diagnostic code, for the minor extremity, the ratings are as follows: A 20 percent rating is appropriate when there is incomplete paralysis of the median nerve which is "moderate" in nature; a 40 percent rating is appropriate when there is incomplete paralysis of the median nerve which is "severe" in nature; and a 60 percent rating is appropriate with complete paralysis. 38 C.F.R. § 4.124a, DC 8515. After consideration of the evidence, the Board finds that the Veteran is entitled to a 20 percent rating, but no more, for his left wrist disability. The described symptoms are best characterized as "moderate." At an August 2010 examination, he complained of tingling and numbness of the left fingertips with pain that travels from his left wrist to as far as the left side of his neck. During the same month of the examination, the Veteran submitted a statement the same month asserting chronic, excruciating pain. The Veteran's statement is in agreement with his August 2013 peripheral nerves examination, where he complained of severe constant pain and paresthesias and/or dysesthesias. The Board also observes that the Veteran's physician instructed him to not type due to his left wrist disability. The Board notes that the Veteran has separately filed a service connection claim for right elbow and shoulder pain, which he asserts is secondary to his carpal tunnel syndrome. The Veteran's medical records document that his elbow and shoulder pain are not a separate disability, but rather part of his carpal tunnel syndrome. Specifically, the physician who conducted the August 2010 examination noted that the Veteran had carpal tunnel syndrome with pain going up to the left hand, wrist, forearm, arm, and left side of the neck. Therefore, the Board is increasing the Veteran's rating in part by recognizing that his symptoms are located in more than just the area of his wrist. However, the Board concludes that a rating in excess of 20 percent would not be appropriate. During his August 2010 examination, there was no observed effect of his disability on range of motion. Despite decreased sensation in his fingertips, his motor function was normal. Similarly, during his August 2013 peripheral nerves examination, all of his ranges of motion were normal with no objective evidence of pain. There was no ankylosis and he exhibited normal muscle strength for wrist flexion and extension except for a report of pain upon repetitive movement. Therefore, the Board agrees that the Veteran's peripheral neuropathy has been characterized by moderate symptoms. In considering the appropriate disabilities ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran's statements, which were made both directly to the Board and via his medical providers, were explicitly taken into account as shown by the examples of the Veteran's symptoms provided above. Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). 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 veteran. 38 U.S.C. § 5107(b). The Veteran is seeking service connection for pain in his left elbow and shoulder, which he asserts is secondary to his carpal tunnel syndrome. Based on the evidence as detailed below, the Veteran's claim is denied. Initially, the Board notes that a threshold requirement in all service connection claims is that there is a current disability. The Board finds that the record does not show that the Veteran has a current and distinct disability with regards to his claim. Instead, the Veteran's medical records document that the Veteran's reported pain in these areas is part of his service-connected carpal tunnel syndrome. The Veteran's medical records document that his elbow and shoulder pain are not a separate disability, but rather part of his carpal tunnel syndrome. Specifically, the physician conducted the August 2010 examination noted that the Veteran had carpal tunnel syndrome with pain going up to the left hand, wrist, forearm, arm, and left side of the neck. The Board acknowledges that the August 2008 VA examiner stated that the Veteran's service-connected excised, benign synovioma of the left wrist in 2001 caused his arm pain. However, the Board is persuaded by the August 2010 examiner who only listed the Veteran's surgery scar as a residual from his 2001 surgery. Additionally, the August 2013 VA examination for the excised, benign synovioma revealed a wrist evaluation within normal limits despite pain upon movement. When evaluating the Veteran's carpal tunnel syndrome disability, the Board has specifically included the Veteran's complaints of arm pain in the disability rating calculation. Therefore, even if the Board accepted the Veteran's statements asserting a link between his disability and military service, the evidence still does not demonstrate the first element required for service connection-a current disability. See 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). On a final note, the Board is not finding that pain can never be a disability. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). Rather, in this instance, the described pain is part of the Veteran's service-connected carpal tunnel syndrome, which considers the elbow and shoulder pain in the rating determination. Consequently, the Board's conclusion is not in opposition to the Federal Circuit's ruling in Saunders. ORDER A rating in excess of 70 percent for PTSD is denied. A 20 percent rating, but no more, for carpal tunnel syndrome of the left wrist, is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for a disability manifested by left elbow and shoulder pain, to include as due to carpal tunnel syndrome of the left wrist, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs