Citation Nr: 20005642 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 15-04 379 DATE: January 23, 2020 ORDER Entitlement to an increased rating in excess of 20 percent for left carpal tunnel syndrome post-operative is denied. Entitlement to an increased rating of 50 percent, but no higher, for right carpal tunnel syndrome post-operative is granted. Entitlement to total disability individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s left carpal tunnel syndrome post-operative is manifest by no more than moderate incomplete paralysis of the minor extremity. 2. The Veteran’s right carpal tunnel syndrome post-operative is manifest by no more than severe incomplete paralysis of the major extremity. 3. Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 for left carpal tunnel syndrome post-operative have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8615. 2. The criteria for a disability rating of 50 percent, but no higher, for right carpal tunnel syndrome post-operative have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8615. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1991 to November 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In an April 2018 Board hearing, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. Compliance with prior Board remand In May 2018, the Board remanded the claims on appeal for further development. For the reasons explained below, the Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2018, the Board ordered the RO to schedule the Veteran for an examination and prepare to determine the current severity of his service connected left and right carpal tunnel syndrome disabilities. The RO was also ordered to obtain updated VA treatment records, ensure all notification and development action required for issue of entitlement to TDIU was completed, readjudicate the claim on appeal, and provide the Veteran and his representative a Supplemental Statement of the Case (SSOC) if benefit sought is not granted. The Board acknowledges that the RO obtained updated VA treatment records in April 2019, June 2019, and September 2019. Furthermore, the RO conducted another VA examination with the Veteran, and prepared Peripheral Nerves Disability Benefit Questionnaire (DBQ) in May 2019. The RO also prepared a September 2019 supplemental statement of the case (SSOC) denying the claim on appeal. As such, the Board will find that the RO substantially complied with the May 2018 Board remand order. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has been established already and an increase in the disability rating is at issue, the veteran’s present level of disability is the question of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged disability ratings are appropriate in any increased disability rating claim where distinct time periods with different ratable symptoms can be identified in the evidence. The relevant focus for adjudicating an increased disability rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In instances where the disability rating being appealed is the initial disability rating that was assigned with a grant of service connection, the entire appeal period is for consideration, and again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to an increased rating for left and right carpal tunnel syndrome The Veteran seeks a higher evaluation of his left and right carpal tunnel post-operative. See February 2014 NOD. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8615 and 8715. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 for the major extremity and 20 for the minor extremity. Severe incomplete paralysis is rated as 50 for the major extremity and 40 for the minor extremity. Complete paralysis of the median nerve is manifest by 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; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 60 percent rating for the minor wrist and a 70 percent disability rating for the major wrist. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Factual Background In a January 2015 Wrist Conditions Disability Benefits Questionnaire, the examiner found no wrist ankylosis and limited range of motion of wrist with right wrist dorsiflexion to 25 degrees and left wrist dorsiflexion to 30 degrees. In a March 2018 Electrodiagnostic Evaluation, the examiner performed a nerve conduction study on both arms and reported nerve conduction studies revealed abnormal results with severe, longstanding right carpal tunnel syndrome on the right side and mild to moderate left carpal tunnel syndrome. The March 2018 examiner indicated the Veteran’s right carpal tunnel syndrome is evidenced by severely prolonged right median motor distal latency, but median motor responses are low amplitude suggesting long standing nature of his carpal tunnel. The March 2018 examiner indicated the Veteran’s left carpal tunnel syndrome demonstrated median motor distal latency was mildly prolonged and sensory distal latency was also prolonged, indicating mild to moderate left carpal tunnel syndrome. See March 2018 Electrodiagnostic Evaluation. In an April 2018 Board hearing, the Veteran testified he hasn’t had full time employment since 2000 because his hands get weak after a short amount of work. The Veteran further stated he has never been to college. See April 2018 Board Hearing Transcript. In a May 2019 Peripheral Nerves Disability Benefits Questionnaire, the examiner diagnosed bilateral carpal tunnel syndrome with a date of diagnosis as 1996. The May 2019 examiner noted the Veteran is right handed. The May 2019 examiner reported the Veteran suffered from severe intermittent pain and numbness in his right upper extremity and moderate intermittent pain and numbness in his left upper extremity. The May 2019 examiner observed the Veteran demonstrated 4/5 for the grip and pinch in muscle strength testing. The May 2019 examiner rated the right and left medial nerve as moderate incomplete paralysis. The May 2019 examiner indicated March 2018 EMG studies showed abnormal results with severe and longstanding right carpal tunnel syndrome and moderate left carpal tunnel syndrome. See May 2019 Peripheral Nerves Disability Benefits Questionnaire. In a June 2019 Correspondence, the Veteran provided a personal statement and disputed certain portions of the evidence. The Veteran wrote that his service-connected disability prevented him from achieving a career as a certified welder. Analysis From the outset, the Board notes that the Veteran is right hand dominant. Left Carpal Tunnel Syndrome Post-Operative In order to warrant a higher rating than the currently assigned 20 percent for left carpal tunnel syndrome, there must be functional limitation equivalent to severe incomplete paralysis of the median nerve. Here, however, such limitation has not been shown by the medical evidence on record, as the May 2018 examiner reported mild to moderate left carpal tunnel syndrome and the May 2019 examiner reported left medial nerve as moderate incomplete paralysis. Thus, an increased rating in excess of 20 percent for left carpal tunnel syndrome is not warranted. Based on the above, the Board finds that the Veteran’s left carpal tunnel syndrome is primarily manifest by pain and numbness. The Board also finds that the most probative evidence of record is against a finding that the left carpal tunnel syndrome is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes to include limited motion of the wrist, but there is no competent and credible medical evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected or that limitation of motion of the wrist or ankylosis of the wrist would result in higher rating. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left carpal tunnel syndrome post-operative. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Right Carpal Tunnel Syndrome Post-Operative In order to warrant a higher rating than the currently assigned 30 percent for right carpal tunnel syndrome, there must be functional limitation equivalent to severe incomplete paralysis of the median nerve. Such limitation has been shown by the medical evidence on record, as the March 2018 nerve conduction study which revealed severe, longstanding right carpal tunnel syndrome and the May 2019 examiner confirmed the March 2018 EMG studies showed abnormal results with severe and longstanding right carpal tunnel syndrome. Thus, an increased rating in excess of 30 percent for right carpal tunnel syndrome is warranted. The most probative evidence of record regarding the severity of the Veteran’s right carpal tunnel syndrome is the March 2018 nerve conduction study which revealed severe, longstanding right carpal tunnel syndrome. The March 2018 examiner indicated the Veteran’s right carpal tunnel syndrome is evidenced by severely prolonged right median motor distal latency, but median motor responses are low amplitude suggesting long standing nature of his carpal tunnel. See March 2018 Electrodiagnostic Evaluation. The Board finds that the May 2018 examiner was competent and credible to provide a medical opinion regarding the severity of the Veteran’s bilateral carpal tunnel syndrome, as he was a licensed physician. The Board will afford the medical examiner’s opinion significant probative weight, as the examiner reviewed the Veteran’s medical and surgical history, conducted an in-person examination, performed a nerve conduction study, and provided a rationale for his conclusion that was grounded in the evidence of record. The May 2018 examiner’s rationale is supported by diagnostic tests, and the Veteran’s reports of symptoms such as pain, numbness, and weakness in both hands. In addition, the May 2019 examiner confirmed the March 2018 EMG studies showed abnormal results with severe and longstanding right carpal tunnel syndrome and moderate left carpal tunnel syndrome. See May 2019 Peripheral Nerves Disability Benefits Questionnaire. Based on the above, the Board finds that the Veteran’s right carpal tunnel syndrome is primarily manifest by pain, numbness, and some weakness in the grip and pinch muscle strength testing. The Board also finds that the most probative evidence of record is against a finding that the right carpal tunnel syndrome is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to severe incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes to include limited motion of the wrist, but there is no competent and credible medical evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected or that limitation of motion of the wrist or ankylosis of the wrist would result in higher rating. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record supports an increased 50 percent rating for right carpal tunnel syndrome as the medical evidence when considered as a whole supports a disability picture consistent with severe incomplete paralysis. As a result, the Board finds that an increased rating of 50 percent, but no higher, is warranted for the Veteran’s right carpal tunnel syndrome, as the Veteran has exhibited symptoms consistent with severe incomplete paralysis in the right upper extremity. Entitlement to total disability individual unemployability (TDIU) A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16 (a). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16 (a) (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Factual Background The evidence shows that the Veteran has completed four years of high school and did not have any other education or training before he was too disabled to work. The Veteran’s usual occupation is as a welder and he further indicated he lost his last full-time employment on account of his hands. See April 2008 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In contrast, a subsequent application, the Veteran indicated he was employed 40 hours per year from 2016 to present in certified welding and indicated he had military training from 1991 to 1995. In addition, the Veteran reported he earned $80,000 in 2008 as a certified welder and he became too disabled to work in August 2012. See May 2018 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In a June 2008 VA examination, the Veteran reported that he is self-employed and works various hours per day/week and noted his hands limit his activities on a daily basis. The Veteran reported he is required to perform frequent to continuous forceful gripping/grasping and hand/finger manipulation and is required to lift 75 to over 100 pounds frequently. The June 2008 examiner noted the Veteran’s usual occupation is impacted in all aspects of fabrication and welding by lack of endurance and weakness of the hands as well as affecting his manual dexterity. In a December 2008 Mental Health Medication Management Note, the Veteran indicated he is doing well with relationships, dealing with wrist difficulties and vocationally and is less stressed with finances. In an April 2009 Mental Health Medication Management Note, the Veteran reported he attempted to work for specialty auto manufacturers, and worked at a welding shop. The Veteran indicated more recently he bought a house with his girlfriend and opened a welding shop in his garage and is doing financially and emotionally much better. The Veteran stated he is feeling much better since he has his own welding business and has bought a house with his girlfriend. In a January 2014 Peripheral Nerves Condition Disability Benefits Questionnaire, the examiner noted the Veteran is self-employed and also works for Predator Industrial LLC overseeing welding jobs for the past three months. The Veteran demonstrated normal muscle strength, deep tendon reflexes, and gait. The Veteran had no muscle atrophy or trophic changes. In an April 2018 Correspondence, the Veteran reported he was unable to continue to perform work as most employers would expect and was forced to go into self-employment. The Veteran also indicated he gets five to ten minutes of dexterous activity per hour then he requires a rest. In an April 2018 Board hearing, the Veteran testified he hasn’t had full time employment since 2000 because his hands get weak after a short amount of work. The Veteran further stated he has never been to college. The Veteran indicated he has occasional jobs and in the last week he worked maybe 8 to 10 hours and about 3 to 4 hours the week before. See April 2018 Board Hearing Transcript. In the May 2019 Peripheral Nerves Disability Benefits Questionnaire, the examiner noted in medical history that the Veteran reported that his hands are weak, he has difficulty managing personal hygiene at toileting, and he is unable to perform twisting, and gripping. The May 2019 examiner also indicated the Veteran is currently working as a welder and the hand pain results in difficulty maintaining this line of work. The May 2019 examiner further reported the severity of the issue may limit his ability to manage sedentary work as these generally require repetitive hand movements in handling paperwork or keyboarding. See May 2019 Peripheral Nerves Disability Benefits Questionnaire. In a June 2019 Correspondence, the Veteran wrote that in 2000, his service-connected disability recurred, his skills were no longer employable, he worked piecemeal jobs, and intermittent opportunities allow him to make some money. The Veteran also disagreed with the statement in May 2019 DBQ relating to functional impact that he is currently working as a welder and indicated this should not be interpreted as employment. The Veteran wrote that “[a] 100 percent rating with employability could put me back on my feet” and “employability with my condition may offer some opportunities.” See June 2019 Correspondence. Analysis With the above grant of his increased rating claim for right carpal tunnel syndrome, the Veteran is currently service-connected for right carpal tunnel syndrome, rated as 50 percent disabling; and left carpal tunnel syndrome, rated as 20 percent disabling. The Veteran’s combined schedular rating is 60 percent. Thus, the Veteran meets the schedular criteria for TDIU, because a disability of one or both upper extremities will be considered as one disability and his combined rating for both his right and left carpal tunnel syndrome rated as one disability meets the requirement of 60 percent or more. Significantly, in the May 2019, the examiner indicated the Veteran is currently working as a welder and the hand pain results in difficulty maintaining this line of work. The May 2019 examiner further reported the severity of the issue may limit his ability to manage sedentary work as these generally require repetitive hand movements in handling paperwork or keyboarding. See May 2019 Peripheral Nerves Disability Benefits Questionnaire. This is supported by the March 2018 nerve conduction study which revealed abnormal results with severe, longstanding right carpal tunnel syndrome on the right side and mild to moderate left carpal tunnel syndrome. See March 2018 Electrodiagnostic Evaluation. Furthermore, the amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty thresholds for one person for 2018 are $12,784. In May 2018, the Veteran indicated his total earned income for the past 12 months was $10,000 and his current monthly earned income was $200-300. See May 2018 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Thus, the weight of evidence shows that the Veteran’s earned income from 2018 was marginal employment. Given the functional limitations of his physical condition as described by the Veteran, and based on above, the Board finds that there is an approximate balance of positive and negative evidence as to whether he can secure and follow substantially gainful employment. Consequently, resolving reasonable of doubt in the Veteran’s favor, the Board finds that the Veteran’s entitlement to TDIU is warranted. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.15, 4.16. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Gerlt, Law Clerk 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.