Citation Nr: 20002193 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 18-29 173 DATE: January 10, 2020 ORDER An evaluation in excess of 10 percent for right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) until March 30, 2018, a 20 percent evaluation until October 27, 2018, and a 40 percent evaluation thereafter, is denied. FINDINGS OF FACT 1. For the period prior to March 30, 2018, the Veteran exhibited symptoms consistent with mild incomplete paralysis of the right upper extremity. 2. For the period from March 30, 2018 to October 27, 2018, the Veteran exhibited symptoms consistent with mild incomplete paralysis of the right upper extremity. 3. For the period since October 27, 2018, the Veteran exhibited symptoms consistent with moderate incomplete paralysis of the right upper extremity. CONCLUSIONS OF LAW 1. Prior to March 30, 2018, the criteria for a rating in excess of 10 percent for right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) have not been met. 2. From March 30, 2018 to October 27, 2018, the criteria for a rating in excess of 20 percent for right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) have not been met. 3. Since October 27, 2018, the criteria for a rating in excess of 40 percent for right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board in August 2017 for issuance of a statement of the case (SOC). Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 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; 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran is competent to testify on factual matters of which that veteran has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). A veteran is also competent to report symptoms of peripheral neuropathy disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). A veteran is competent to describe symptoms and their effects on employment or daily activities. The term “incomplete paralysis” used in reference to evaluation of 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. 38 C.F.R. § 4.124a. The words “slight,” “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. It should also be noted that use of terminology such as “severe” by VA examiners and others, 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 Veteran’s chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) of the right upper extremity has been rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8513 (from October 27, 2018) and was previously rated under Diagnostic Code (DC) 8515 (from March 1, 2006 to October 27, 2018). DC 8513 provides that mild incomplete paralysis is rated 20 percent disabling for either the major or minor extremity; moderate incomplete paralysis is rated 40 percent disabling for the major extremity and 30 percent for the minor extremity; and severe incomplete paralysis is rated 70 percent disabling for the major extremity and 60 percent for the minor extremity. Complete paralysis of all radicular groups is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. DC 8515 reflects disability relating to paralysis of the median nerve. Incomplete, mild paralysis is rated 10% for either arm. Incomplete, moderate paralysis is rated 30% for the dominant and 20% for the non-dominant. Incomplete, severe paralysis is rated 50% for the dominant arm and 40% for the non-dominant. If the hand is stuck bent away from the body at the wrist, the middle and index fingers are stuck in extension more than normal (cannot move either down or side to side), thumb is straight and stuck right up next to the index finger (the hand is completely flat) and the muscles at the base of thumb are atrophied (wasting away), and the palm of the hand cannot be turned to face downward, it is rated 70% for the dominant arm and 60% for the non-dominant arm. Notably, in this claim the Veteran is right hand dominant as evidenced by VA examinations. Analysis The Veteran and his representative contend that he is entitled to increased evaluations for the nerve related disability in his right upper extremity. The Veteran’s representative makes several specific contentions in a March 2019 correspondence. The Veteran’s representative contends that the Veteran’s disability should be evaluated as at least 50 percent disabling under DC 8515 since March 1, 2006 and as at least 70 percent disabling under DC 8513 since February 28, 2014. The Veteran was afforded an examination for his right upper extremity chronic inflammatory demyelinating polyneuropathy (CIDP), previously diagnosed as carpal tunnel syndrome, in September 2013. The examiner diagnosed the Veteran with carpal tunnel syndrome and unspecified polyneuropathy. The Veteran was noted to have moderate intermittent pain and mild paresthesias and/or dysesthesias in the right upper extremity. Numbness was also assessed as mild, and muscle strength testing was all normal. Mild muscle atrophy was noted in both intrinsic hand muscles. Reflex testing was hypoactive. No trophic changes were observed, and the Veteran’s gait was normal. The Veteran’s right upper extremity was positive for Phalen’s sign and Tinsel’s sign. The median nerve was assessed to be normal on both the left and right upper extremities. An EMG was performed in May 2013 and found abnormal results. The examiner noted it was suggestive of severe demyelinating sensorimotor polyneuropathy. The physician noted that unexpected electrophysiologic findings will be notable even though it is asymptomatic and further work up including laboratory and genetic studies will be required. The Veteran was afforded another examination in June 2015. The Veteran was diagnosed with bilateral carpal tunnel syndrome, which the Veteran reported began in 1996 with pain, stiffness, and loss of sensation especially in the right hand. The Veteran was diagnosed with carpal tunnel syndrome, and the condition worsened with muscle weakness, pain, and numbness. Moderate pain was assessed in the right upper extremity, with moderate paresthesias and/or dysesthesias in the right upper extremity, and moderate numbness in the right upper extremity. Muscle strength testing was normal, and no muscle atrophy was observed. All reflex testing was normal, as was all sensory examination testing. No trophic changes were noted, and the Veteran’s gait was normal. Phalen’s sign testing was negative bilaterally, but Tinsel’s sign testing was positive bilaterally. The Veteran’s right upper extremity incomplete paralysis of the median nerve was assessed as mild in severity. No EMG study was performed. The Veteran was afforded an examination in March 2018. The Veteran was diagnosed with carpal tunnel syndrome of the median nerve on the right side, polyneuropathy bilaterally and bilateral lower and upper extremity demyelinating neuropathy. This new diagnosis was indicated to be a progression of the previous diagnosis. The Veteran was noted to have a history of polyneuropathy and carpal tunnel syndrome, and a February 2014 nerve study reflected abnormal results. examining physician opined there is primarily evidence for a generalized sensorimotor polyneuropathy with demyelinating. The Veteran’s current symptoms were hand numbness, sensation of pins and needles, hand weakness, wrist weakness, pain, and stiffness. Acetaminophen was used for treatment. Constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness were all assessed as mild in all extremities. Muscle strength and reflex testing was all normal. No atrophy was noted. Sensory testing was normal, as was the Veteran’s gait, and no trophic changes were noted. Phalen’s sign and Tinsel’s sign were both positive on the right side. All nerve conditions associated with incomplete paralysis were assessed as no more than mild in severity. No EMG studies were performed. The Veteran was afforded an examination in October 2018. The Veteran was diagnosed with chronic inflammatory demyelinating polyneuropathy (CIDP). Treatment was noted to be physical therapy and Tylenol. The current symptoms were numbness, tingling, and weakness in bilateral upper and lower extremities. An EMG was performed. The peripheral nerve conduction studies revealed no response in the right median sensory, ulnar sensory and lower extremity nerves, and prolonged latency and low amplitude in right median motor nerve, and prolonged latencies in right superficial radial sensory and ulnar motor nerves. The F wave study noted no response in right lower extremity nerves, and prolonged latencies in right median and ulnar nerves. The electrical findings are consistent with polyneuropathy of unknown origins, and chronic mild right C8 radiculopathy without ongoing process The Veteran was assessed as having mild intermittent pain in the right upper extremity, moderate paresthesias and/or dysesthesias in the right upper extremity, and moderate numbness in the right upper extremity. Muscle strength was reduced and noted to be 4/5 in all testing. No muscle atrophy was noted. Reflex testing was hypoactive in all categories, and sensation testing was reduced in all categories. No trophic changes were noted, but the Veteran was noted to have a limping gait due to CIDP. Phalen’s sign and Tinsel’s sign were positive bilaterally. Nerve testing reflected moderate severity on the right upper extremity for the median nerve, ulnar nerve, and the upper/middle/lower radicular groups. The Veteran was noted to use a wrist brace occasionally for CIDP. It was noted the Veteran has difficulty typing or walking for long due to pain. The Veteran’s symptoms were evaluated as worsening, and the new diagnosis was a correction of the previous carpal tunnel syndrome diagnosis. The representative contends that VA has failed to acknowledge evidence supporting an increased evaluation prior to March 30, 2018. Specifically, in an April 2019 Notice of Disagreement, the representative argues the June 2015 VA examination is inadequate because diagnostic studies and a review of the claims file were not performed. While in an EMG was not performed, this does not automatically render the examination inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The representative’s assertion that the examiner did not review the claims folder is undercut by the discussion of the Veteran’s peripheral nerve condition. No other support is provided that the examiner did not review the claims folder. The representative continued that the September 2013 VA examination reflected symptoms including atrophy in both intrinsic hand muscles. It is noted that the Veteran’s right upper extremity disability has worsened, however, on no examination since has atrophy been noted. The representative also discussed the September 2013 nerve conduction study that revealed severe demyelinating sensorimotor polyneuropathy involving the bilateral ulnar and median nerves. However, the examiner noted the unexpected electrophysiological findings were asymptomatic and further work-up including laboratory and genetic studies were required. No evidence of such studies has been submitted. The Board notes that the EMG findings discussed do not support a higher disability rating because the examiner indicated the symptoms associated with the unexpected electrophysiological findings were asymptomatic. This is consistent with the examination findings, which indicate a significantly less degree of impairment. In a March 2019 correspondence, the Veteran’s representative made further contentions. In addition to the already discussed contentions, the representative contends the March 2018 examination was inadequate for rating purposes because there was not sufficient rationale that the new diagnosis of bilateral lower extremity and left upper extremity neuropathy is unrelated to service-connected disabilities. This does not, however, pertain to severity of the Veteran’s right upper extremity that is at issue in this decision, and no support is provided why the March 2018 examination was inadequate for assessing the severity of that disability. The evidence reflects that the Veteran’s right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome) was no more than mild in severity until the October 2018 examination. Hence, a higher disability rating under either DC 8513 or 8515 for the period prior to October 27, 2018 is not supported by the evidence. Since that period, no evidence has been submitted to support a greater than moderate degree of severity for right upper extremity chronic inflammatory demyelinating polyneuropathy (previously carpal tunnel syndrome). Hence, an evaluation in excess of 40 percent is not supported by the record. While the Veteran’s representative has contended that VA has failed to acknowledge evidence supporting an increased rating, all of the cited evidence has been considered and discussed. The Veteran and representative have offered no evidence to support a higher disability rating, such as treatment records containing clinical findings. Here, the Board notes that the Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). The preponderance of evidence is against the Veteran’s claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, Associate Counsel 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.