Citation Nr: 20004275 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 14-09 080 DATE: January 17, 2020 ORDER The claim of entitlement to a 50 percent disability rating for right carpal tunnel syndrome with peripheral neuropathy is granted, subject to the laws and regulations controlling the award of monetary benefits. The claim of entitlement to a 40 percent disability rating for left carpal tunnel syndrome with peripheral neuropathy is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s right carpal tunnel syndrome with peripheral neuropathy more closely approximated severe incomplete paralysis of the right lower radicular group. 2. Throughout the entire period on appeal, the Veteran’s left carpal tunnel syndrome with peripheral neuropathy more closely approximated severe incomplete paralysis of the left lower radicular group. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for a 50 percent disability rating for right carpal tunnel syndrome with peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8512 (2018). 2. Throughout the entire period on appeal, the criteria for a 40 percent disability rating for left carpal tunnel syndrome with peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8512 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Air Force from January 1981 to January 2001. This case was most recently before the Board in February 2018, at which time it was remanded for additional development. In July 2019, the RO increased the disability ratings for the Veteran’s right carpal tunnel syndrome with peripheral neuropathy from 30 percent to 40 percent, and his left carpal tunnel syndrome with peripheral neuropathy from 20 percent to 30 percent, both effective March 12, 2014. Despite the increased disability ratings, the Veteran’s appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (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). Accordingly, the issues remain in appellate status. The Board has characterized the issues on appeal accordingly. Duties to Notify and Assist Neither the Veteran nor his attorney 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 a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its February 2018 remand directives. This claim was remanded to obtain a VA examination. The Veteran was provided the requested VA examination in May 2019. Stegall v. West, 11 Vet. App. 268 (1998). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. 1. Entitlement to a higher disability rating for right carpal tunnel syndrome with peripheral neuropathy, rated as 30 percent prior to March 12, 2014, and 40 percent thereafter. The Veteran’s bilateral carpal tunnel syndrome with peripheral neuropathy is rated pursuant to Diagnostic Code 8512 for paralysis of the lower radicular group. 38 C.F.R. § 4.124a, Diagnostic Code 8512. 38 C.F.R. § 4.124a, Diagnostic Code 8512. Under Diagnostic Code 8512, mild incomplete paralysis of the lower radicular group warrants a 20 percent evaluation for either the minor or major hand, moderate incomplete paralysis of the lower radicular group warrants a 30 percent evaluation for the minor hand and a 40 percent evaluation for the major hand, and severe incomplete paralysis of the lower radicular group warrants a 40 percent evaluation for the minor hand and a 50 percent evaluation for the major hand. Complete paralysis of the lower radicular group, with all intrinsic muscles of the hand, and some or all of the flexors of the wrist and fingers, paralyzed (substantial loss of use of the hand) warrants a 60 percent evaluation for the minor hand and a 70 percent evaluation for the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8512. The Veteran’s carpal tunnel syndrome with peripheral neuropathy also involves the median nerve, radial nerve, and ulnar nerve. Under Diagnostic Code 8514, mild incomplete paralysis of the radial nerve warrants a 20 percent evaluation for either the minor or major hand, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation for the minor hand and a 30 percent evaluation for the major hand, and severe incomplete paralysis of the median nerve warrants a 40 percent evaluation for the minor hand and a 50 percent evaluation for the major hand. Complete paralysis of the radial nerve with drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger, an inability to extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist, supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously, total paralysis of the triceps that occurs only as the greatest rarity warrants a 60 percent disability rating for the minor hand and a 70 percent disability rating for the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8514. Under Diagnostic Code 8515, mild incomplete paralysis of the median nerve warrants a 10 percent evaluation for either the minor or major hand, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation for the minor hand and a 30 percent evaluation for the major hand, and severe incomplete paralysis of the median nerve warrants a 40 percent evaluation for the minor hand and a 50 percent evaluation for the major hand. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, and the index and middle finger remain extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at the right angle to the palm; weakened flexion of the wrist; and pain with trophic disturbances warrants a 60 percent evaluation for the minor hand and a 70 percent evaluation for the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under Diagnostic Code 8516, mild incomplete paralysis of the ulnar nerve warrants a 10 percent evaluation for either the minor or major hand, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation for the minor hand and a 30 percent evaluation for the major hand, and severe incomplete paralysis of the median nerve warrants a 30 percent evaluation for the minor hand and a 40 percent evaluation for the major hand. Complete paralysis of the ulnar nerve, with “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reserve), cannot adduct the thumb; flexion of wrist weakened warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8516. 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 the 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. See 38 C.F.R. § 4.424a (2018). The words “mild,” “moderate,” and “severe” 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 (2018). 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. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Following a review of the evidence of record, the Board concludes that the Veteran is entitled to a 50 percent disability rating for his right carpal tunnel syndrome with peripheral neuropathy and a 40 percent for left carpal tunnel syndrome with peripheral neuropathy throughout the entire appeal period. During the August 2012 VA examination the Veteran reported tingling, numbness, weakness, and loss of strength in the hands and wrists. He was unable to hold a weed eater, lift greater than 20 lbs., or squeeze things without experiencing extreme pain in his hands/wrists. The examiner noted moderate constant pain, severe paresthesias/dysesthesias, and severe numbness. Muscle strength testing revealed active movement against gravity in elbow extension, elbow flexion, wrist extension, wrist flexion, grip, and pinch. Phalen’s sign and Tinel’s sign were positive. The examiner determined that there was moderate incomplete paralysis of the radial nerve, median nerve, and ulnar nerve of the bilateral upper extremities. In October 2013, the Veteran stated that his bilateral carpal tunnel syndrome affected his ability to lift anything over 10 lbs., complete home/yard work, and do repetitive movements without severe pain. In September 2014, the Veteran described weakness in the fingers, hands, and wrists; increased weakness, finger cramping/curling, pain with normal activities, and an inability to lift anything over 10 lbs. During the May 2019 VA examination, the Veteran described wrist pain, weakened grip, numbness in both hands, and loss of partial sensitivity in both hands. He was unable to make a fist and experienced severe pain when doing yard work. He wore wrist splints daily and took naproxen to treat his carpal tunnel syndrome. The examiner noted symptoms of moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. Muscle strength testing resulted in active movement against some resistance in the wrist flexion, wrist extension, and grip of the bilateral upper extremities. There was also active movement against some resistance when pinching (thumb to index finger) of the left upper extremity. There was also left hand thenar atrophy. Deep tendon reflexes were hypoactive in the biceps, triceps, and brachioradialis. Sensation for light touch was decreased in the inner/outer forearms and hands/fingers. Phalen’s sign and Tinel’s sign were both positive. The examiner found that there was moderate incomplete paralysis of the radial nerve, median nerve, ulnar nerve, and lower radicular group. Based on the foregoing, the Board finds that a 50 percent rating for the left upper extremity and a 40 percent rating for the right upper extremity is warranted for the Veteran’s carpal tunnel syndrome with peripheral neuropathy. The medical evidence shows symptoms such as severe pain, difficulty lifting greater than 10 lbs., severe paresthesias/dysesthesias, severe numbness, decreased muscle strength, an inability to make a fist, hypoactive deep tendon reflexes, and decreased sensation to light touch. The Board acknowledges that the VA examiners concluded that there was moderate incomplete paralysis. However, a review of the VA examination reports and the Veteran’s lay statements show that the manifestations of the Veteran’s bilateral carpal tunnel syndrome were severe throughout the period on appeal. Therefore, the Board resolves reasonable doubt in the Veteran’s favor and finds that the presence of severe incomplete paralysis of the affected nerves has been approximated throughout the appeal period. In addition, the Board finds that higher ratings are not warranted under Diagnostic Codes 8512, 8514, 8515, or 8516. The medical evidence does not suggest complete paralysis of the lower radicular group, median nerve, ulnar nerve, or radial nerve. The Board notes that the Veteran’s carpal tunnel syndrome with peripheral neuropathy resulted in difficulty completing yardwork, problems with repetitive movements, difficulty lifting greater than 10 lbs., 4/5 muscle strength in wrist flexion, 3/5 muscle strength in grip, 3/5 muscle strength in elbow extension and flexion, inability to make a fist, and thenar muscle atrophy. However, the evidence does not show and the Veteran does not assert substantial loss of use of the hands, paralyzed intrinsic muscles of the hands, hands inclined to the ulnar side, index and middle fingers extended, defective opposition of the thumbs, inability to flex distal phalanx of thumbs, weak wrist flexion, pain with trophic changes, hands and fingers drop, inability to extend hand at wrist, inability to extend thumb or ake lateral movements with wrist, supination of hand, “griffin claw” deformity, atrophy of dorsal interspaces, thenar and hypothenar eminences, inability to extend ring and little fingers, inability to spread fingers, or inability to adduct the thumb. Therefore, the Board finds that the Veteran’s lower extremity peripheral neuropathy has more nearly approximated severe incomplete paralysis than complete paralysis of the lower radicular group, median nerve, radial nerve, and ulnar nerve. As the preponderance of the evidence is against any additional disability rating, the benefit of the doubt rule is not applicable, and entitlement to any additional increased disability rating must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Entitlement to a higher disability rating for left carpal tunnel syndrome with peripheral neuropathy, rated as 20 percent prior to March 12, 2014, and 30 percent thereafter. Please see discussion in paragraph 1. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.