Citation Nr: 20002155 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 11-25 258 DATE: January 9, 2020 ORDER Entitlement to a rating in excess of 10 percent for left upper extremity carpal tunnel syndrome (CTS) prior to August 11, 2011, and in excess of 20 percent from August 11, 2011, is denied. FINDINGS OF FACT 1. Prior to August 11, 2011, the Veteran’s left upper extremity CTS symptoms approximated mild incomplete paralysis of the left (minor) median nerve. 2. Beginning August 11, 2011, the Veteran’s left upper extremity CTS symptoms approximated moderate incomplete paralysis of the left (minor) median nerve. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to August 11, 2011, and in excess of 20 percent from August 11, 2011, for left upper extremity CTS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from January 1980 to December 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was previously before the Board in August 2017, at which time the Board issued a final decision. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In April 2019, a memorandum decision (MEMDEC) was issued which set aside the August 2017 Board decision, and the case was returned to the Board. 1. CTS Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disability on appeal will be assigned. The Board will accordingly discuss the propriety of the ratings assigned at each stage. The Veteran’s service-connected left-hand CTS has been rated throughout the appeal period under Diagnostic Code 8515 and has been rated as the minor side. Diagnostic Code 8515 provides ratings for paralysis of the median nerve. The Board will consider any potentially applicable Diagnostic Code in its analysis. Disease of the peripheral nerves of the upper extremities are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8510 to 8719. The Veteran’s right side is his dominant side, and thus is considered the “major” extremity. The Veteran’s left side is his “minor” side. Diagnostic Code 8515 provides that mild, incomplete paralysis of the median nerve is assigned a 10 percent disability rating for the major side; moderate, incomplete paralysis is assigned a 30 percent disability rating for the major side; and severe, incomplete paralysis is assigned a 50 percent disability rating for the major side. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of 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; pain with trophic disturbances, is assigned a 70 percent disability rating for the major side. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). The Veteran has asserted that his left upper extremity neurological impairment is worse than contemplated by the currently assigned ratings. At a March 2010 VA examination, the Veteran reported weakness in his left fingers but denied tingling and numbness. The Veteran reported that his symptoms occurred daily and were constant. He reported that he wore wrist braces for treatment but that he was unable to write, type, or hold anything with his hands. He reported his overall functional impairment to consist of weakness in the hands and the inability to hold anything longer than a few minutes at a time. Upon physical examination, the Veteran was able to tie shoelaces, fasten buttons, and pick up a piece of paper without difficulty. Hand dexterity examination showed that the fingertips were able to approximate the proximal crease of the palm on both hands. Left hand strength was within normal limits. Coordination and motor function were within normal limits. There were findings of paresthesias in the median nerve distribution in both upper extremities, with the right being greater than the left. Upper extremity reflex examination was normal. Tinel’s sign was absent, bilaterally; and, Phalen’s test was positive, bilaterally. Peripheral nerve examination revealed neuritis. The examiner confirmed the diagnosis of bilateral CTS. In an October 2010 private treatment record, the examiner noted that upon physical examination, Tinel’s and Phalen testing was negative on the left. In an August 2011 statement, the Veteran reported that the symptoms of his right and left upper extremity CTS had increased in severity. Specifically, he reported that he had numbness and tingling in both hands as soon as he started to bend his wrist and that holding a steering wheel, using a telephone, and reading a newspaper caused increased symptoms. The Veteran also reported that he had a lack of feeling and coordination in the thumb, index, and middle fingers of both hands. At a June 2012 VA examination, the Veteran reported that his symptoms of bilateral numbness and weakness had gotten progressively worse. Upon physical examination, the Veteran had moderate paresthesias and numbness in both upper extremities. Grip strength and the ability to pinch the thumb to the index finger were decreased in both hands. There was atrophy located in the palmer hand, bilaterally, with the right being worse than the left. Reflex examination was normal and there were no trophic changes attributable to neuropathy. Both Phalen’s and Tinel’s signs were positive, bilaterally. The Veteran was noted to have mild incomplete paralysis of the right upper extremity median nerve and moderate incomplete paralysis of the left upper extremity median nerve. The examiner noted that the Veteran’s peripheral neuropathy impacted his ability to work in that he was limited in the use of his hands because activity caused symptoms of numbness, and it was recommended he wear wrist braces at all times while working. In an October 2012 statement, the Veteran reported that his symptoms were getting worse. He reported loss of strength that continued to get worse on a regular basis and that he could not write without constant pausing because his hand became too painful. In a November 2012 statement, the Veteran reported that he continued to lose grip strength in both hands, along with increasing pain and muscle cramping. The Veteran also reported a loss of feeling in his fingers and loss of strength and coordination at the base of his thumb in both hands. In a March 2013 statement, the Veteran’s daughter reported that she watched her father have trouble using his hands, explaining that he had difficulty holding a paint brush to help paint her house in 2008. Also, he had started to install new flooring in her house but was forced to stop and hire someone because of the aching in his hands. She reported that while cutting and trimming the grass, he would complain about his fingers locking and cramping as well as numbness and tingling in his thumb, index, middle, and ring fingers. She also reported that the Veteran dropped things such as cell phones, iPods, iPads, CDs, and DVDs. She reported that it took a long time for the Veteran to type on the computer and that she witnessed him have a difficult time holding the steering wheel of the car for long periods. The Veteran’s daughter also reported witnessing the Veteran almost drop his granddaughter in June 2010, after holding her for a few seconds, because he was having difficulty with his grip. In a March 2013 statement, the Veteran’s spouse reported that the Veteran’s chronic hand pain had become more severe in recent years and that numbness and tingling in his thumb, index, middle, and ring fingers had gotten worse. She reported that while holding the steering wheel of the car, he had to switch from hand to hand and shake out his hands to relieve pain. She reported that the Veteran experienced numbness and tingling, with pain radiating from his wrist up to his shoulders and down to his fingers and palm while driving. She also reported that the Veteran frequently dropped things like forks and his cell phone or iPad while just sitting there. She reported it took the Veteran longer to do things such as mow the lawn, trim the shrubs, or wash the car because of the problems he had with his hands. The Veteran’s wife reported an incident that occurred in June 2011 where the Veteran dropped the trimmer while trimming the shrubs and cut the thumb and index finger of his left hand, requiring stitches. At a March 2014 VA examination, the Veteran reported that his CTS symptoms had continued to increase in severity. The examiner noted that the Veteran was right-handed and that he experienced severe constant pain in both upper extremities, severe paresthesias in both upper extremities, and severe numbness in both upper extremities. Muscle strength testing was normal, bilaterally. There was no atrophy and deep tendon reflexes were normal. Sensory examination revealed decreased sensation in the hands and fingers. There were no trophic changes. Phalen’s sign was negative, bilaterally; and, positive for Tinel’s sign, bilaterally. The examiner found that the Veteran had moderate incomplete paralysis of the left median nerve. The examiner noted that the Veteran’s upper extremity neurological impairment impacted his ability to work in that he was unable to write or type. The Veteran’s upper extremity neurological impairment also caused the Veteran to be unable to hold things, unable to carry groceries, and unable to grip things like he used to. A review of the record shows that the Veteran receives treatment at the VA Medical Center and from private providers for various disabilities, to include his bilateral upper extremity neurological impairment. A review of the treatment notes of record does not show that the Veteran has symptoms that are worse than those described in the VA examination reports of record. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for left upper extremity CTS prior to August 11, 2011. In this regard, the Board notes that the Veteran’s left upper extremity symptoms approximated mild incomplete paralysis of the median nerve prior to that date. While the Veteran did report some weakness and pain at his March 2010 VA examination, the Veteran was able to tie shoelaces, fasten buttons, and pick up a piece of paper without difficulty. Further, coordination and motor function were within normal limits. Therefore, a rating in excess of 10 percent for left upper extremity CTS is not warranted prior to August 11, 2011. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent rating for left upper extremity CTS from August 11, 2011. On August 11, 2011, the Veteran submitted a statement indicating his left upper extremity CTS may have increased in severity. At that time, the Veteran’s left upper extremity symptoms had increased to the point where they approximated moderate incomplete paralysis of the median nerve in severity. He experienced increased pain and weakness, decreased grip strength, and difficulty doing ordinary activities with his hand. However, there is no indication from the record that the Veteran’s left upper extremity symptoms approximated severe incomplete paralysis of the median nerve. In this regard, both the June 2012 and March 2014 VA examiners both noted that the Veteran’s symptoms were purely sensory in nature with pain, numbness, and tingling. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. While the Veteran experienced decreased grip strength, deep tendon reflexes were all normal. Therefore, a rating in excess of 20 percent for left upper extremity CTS beginning August 11, 2011, is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board also considered whether higher disability ratings would be warranted under Diagnostic Codes 8512 (lower radicular group) or 8513 (all radicular groups). However, the competent evidence of record specifically attributed the Veteran’s left upper extremity condition to impairment of the median nerve. The March 2010 VA examination report indicated median nerve neuritis and documented paresthesias in both hands in the median nerve distribution. Additionally, in June 2012 and March 2014, the examining VA physicians both expressly found that the Veteran’s left upper extremity condition involved the median nerve and did not include the upper, middle, or lower radicular groups. As such, the Board finds that the evidence did not show that the Veteran suffered from paralysis of the lower radicular group, or all radicular groups during this appellate period. See 38 C.F.R. § 4.124a, Diagnostic Codes 8512, 8513, 8514, 8515, 8516. In the August 2018 brief, the Veteran’s representative raised the issue of whether an extraschedular rating is appropriate for the service-connected CTS of the left upper extremity. Generally, the degrees of disability specified in the Rating Schedule 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. 38 C.F.R. § 3.321(a). Because the disability ratings are averages, it follows that an assigned rating may not completely account for each individual veteran’s circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional cases where the schedular evaluations are found to be inadequate, however, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, under the criteria set forth in 38 C.F.R. § 3.321, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, the Court fashioned a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. After reviewing the evidence of record, the Board finds that a comparison between the level of severity and symptomatology of the Veteran’s assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology. In addition, there is no evidence to suggest, nor has the Veteran contended, that there is evidence of frequent periods of hospitalization as to render impractical the application of the regular schedular standards. It is undisputed that the Veteran’s left upper extremity symptoms cause functional impairment. To this end, the Veteran’s left upper extremity pain with weakness and decreased grip strength are contemplated by the rating schedule. Furthermore, the Veteran’s use of an assistive device, a brace, is due to symptoms related to impairment of function and thus is contemplated by the schedular rating criteria. Cf. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2019). (Continued on the next page)   Thus, the Board finds that no referral is required for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). SPENCER L. LAYTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.