Citation Nr: 20072575 Decision Date: 11/10/20 Archive Date: 11/10/20 DOCKET NO. 16-43 313 DATE: November 10, 2020 ORDER Entitlement to a 20 percent rating, and no higher, for cubital and carpal tunnel syndrome of the right wrist is granted. FINDING OF FACT During the period on appeal, the appellant’s cubital and carpal tunnel syndrome of the right wrist was manifested by symptoms approximating no worse than mild incomplete paralysis. CONCLUSION OF LAW The criteria for entitlement to a rating of 10 percent, and no higher, for cubital and carpal tunnel syndrome of the right wrist have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the U.S. Army from February 2006 to September 2011, including service in Afghanistan. He is the recipient of the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied a compensable rating for cubital and carpal tunnel syndrome of the right wrist. The appellant was afforded a video hearing before the undersigned in June 2019. A transcript is of record. In November 2019, the Board remanded the matter for additional evidentiary development. In a July 2020 rating decision, the RO granted a 20 percent evaluation for cubital and carpal tunnel syndrome of the right wrist, effective December 14, 2019. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A Supplemental Statement of the Case (SSOC) was issued in August 2020. The July 2020 award of service connection for obstructive sleep apnea and left shoulder strain constitutes a full award of the benefits sought on appeal with respect to the claims of service connection for sleep apnea and a left shoulder disability. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, those issues are no longer before the Board. The Board observes that, as noted infra, the appellant was diagnosed with chronic right wrist sprain and arthralgia in April 2016 and that January 2016 X-rays revealed post-traumatic degenerative joint disease of the right wrist. However, the December 2019 contracted examiner indicated that there was no change in the diagnosis of the appellant’s service-connected disability and no additional diagnoses were rendered. It has not been contended otherwise. In any event, the Board observes that the appellant has reported on multiple occasions that an armor plate fell on his right wrist. As such, should the appellant wish to file a claim of entitlement to service connection for the now-diagnosed right wrist strain and/or degenerative joint disease, he is invited to file such with the RO on the proper form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Background In November 2015, the appellant submitted a claim for an increased rating for his service-connected right wrist cubital and carpal tunnel syndrome. VA clinical records received in support of the claim show that in December 2015, the appellant complained of off-and-on right wrist pain for many years. Although he wears a night splint, his pain is worse at night. Pain goes down the radial side of the wrist and across the wrist to the ulnar side. The appellant indicated that nothing seems to help the pain. As such, he had discontinued taking antiinflammatory medications. An EMG/nerve conduction study was performed in January 2016. The appellant endorsed burning and numbness into the right thumb for about two months, and about two years of right numbness at the right middle and ring fingers. Hand weakness was occasional. It was noted that a December 2011 electrodiagnostic examination had revealed borderline right ulnar motor nerve conduction velocity slowing about the elbow, but was otherwise normal. Current examination revealed sensation decreased to light touch at the whole right hand. Reflexes were normal for the bilateral biceps, triceps, and brachioradialis. Strength was fully bilaterally for shoulder abduction, elbow flexion/extension, wrist flexion/extension, and intrinsic hand strength. The impression was a normal study. There was no evidence of medial neuropathy, carpal tunnel syndrome, ulnar neuropathy, or cervical radiculopathy in either upper extremity. The appellant was afforded a VA wrist examination in April 2016. The claims file was reviewed. He was diagnosed with chronic right wrist sprain and right wrist arthralgia. The appellant endorsed right wrist weakness and reported that, if he carries 20 pounds in weight, after five minutes he drops the object. The appellant also noted that an armor plate fell on his wrist while on active duty. Current symptoms included crackling and popping of the right wrist, intermittent numbness of the little, ring, and middle fingers, and short periods of hand weakness. The appellant was right hand dominant. Flare-ups were denied. There was no localized tenderness, pain on palpation, or crepitus. Muscle strength was full bilaterally and there was no atrophy. There was no functional impact. Tinel’s test was negative bilaterally. The normal January 2016 EMG results were noted. A January 2016 imaging study revealed a small olecranon spur but no acute bony injury. Joint spaces were maintained. A July 2016 clinical note states that the appellant complained of sharp and stinging right hand wrist pain, with numbness to the right hand. Examination revealed right wrist tenderness anterior, no edema or deformity, full range of motion, positive Tinel’s test and positive Phalen’s test. June 2016 X-rays and the January 2016 EMG report were reviewed. The X-ray impression was post-traumatic degenerative joint disease of the right wrist. The appellant was scheduled for a December 2016 neurological examination as to the severity and manifestations of his service-connected right wrist cubital and carpal tunnel syndrome. However, the record indicates that he missed the examination, stating that he was confused regarding the date and time. Pursuant to 38 C.F.R. § 3.655(b), when a claimant fails to report without good cause for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. During his June 2019 Board hearing, the appellant testified that he failed to appear for his right wrist cubital and carpal tunnel syndrome examination because his service-connected PTSD and TBI interfered with his memory regarding which day the examination was scheduled. He noted that he went to the VA medical center a day late. The applicable regulation, 38 C.F.R. § 3.655, provides that the illness of the claimant may be good cause for failing to report for a VA medical examination. In the November 2019 remand, the Board found that the appellant’s explanation as to why he missed his VA examination was credible and that good cause had been shown for missing the examination. The appellant also testified that, while he had worked to strengthen his right wrist so he could carry the same amount of weight in both hands, his right hand will still end up giving way. He endorsed numbness, cracking, popping, and daily pain. The appellant was afforded a contracted peripheral nerves examination on December 14, 2019. The claims file was reviewed. Cubital and carpal tunnel syndrome of the right wrist was diagnosed. The appellant endorsed intermittent numbness of the right palmar thumb and little finger. He also reported that he will infrequently drop items with his right hand. The appellant was noted to be right hand dominant. Symptoms included mild numbness of the right upper extremity. There was no constant pain, intermittent pain, paresthesias, or dysesthesias. Muscle strength of the bilateral upper extremities was full. There was no atrophy. Reflexes were normal bilaterally. Sensory examination was notable for decreased sensation of the right hand/fingers (C6-8) on light touch. Sensory examination was otherwise normal. There were no trophic changes. Phalen’s sign and Tinel’s sign were negative bilaterally. There was mild, incomplete paralysis of the right median and ulnar nerves. No assistive devices were used. Amputation with prosthesis would not equally serve the appellant. January 2016 EMG studies of the right upper extremity were normal. There was no impact on the appellant’s ability to work, although it was noted that he infrequently drops items with his right hand. The examiner stated that there was no change in the diagnosis of the appellant’s service-connected disability and no additional diagnoses were rendered. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” are not defined in the VA 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.” See 38 C.F.R. § 4.6. The term “incomplete paralysis,” with 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 the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510 – 8730. The appellant’s cubital carpal tunnel syndrome of the right wrist is rated under Diagnostic Code (DC) 8513. Such was previously rated under DC 8515. Under DC 8513, a 20 percent rating is warranted for mild incomplete paralysis of all radicular groups of either the major or minor side. A 40 percent rating is warranted for moderate incomplete paralysis of all radicular groups of the major side, and a 30 percent rating is warranted for the minor side. With severe symptoms affecting the major side, a 70 percent rating is warranted if the median nerve is involved, and a 60 percent rating is warranted for the minor side. With complete paralysis affecting the major side, a 90 percent rating is warranted, and an 80 percent rating for the minor side. 38 C.F.R. § 4.124a, DC 8513. Under DCs 8515 and 8516, a 10 percent rating is warranted for mild incomplete paralysis of the ulnar or median nerve of either the major or minor side. A 30 percent rating is warranted for moderate incomplete paralysis of the ulnar or median nerve of the major side. With severe symptoms affecting the major side, a 50 percent rating is warranted if the median nerve is involved, and a 40 percent rating is warranted if the ulnar nerve is involved. With complete paralysis affecting the major side, a 70 percent rating is warranted if the median nerve is involved, and a 60 percent rating is warranted if the ulnar nerve is involved. 38 C.F.R. § 4.124a, DCs 8515-8516. There is no indication, nor is it contended, that there is any involvement of the musculospiral (radial), musculocutaneous, circumflex, or long thoracic nerves. Thus, ratings under DCs 8514, 8517, 8518, and 8519, respectively, are not for application. A note states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. 38 C.F.R. § 4.124a, DCs 8510-8519. 1. Entitlement to a 20 percent rating, and no higher, for cubital and carpal tunnel syndrome of the right wrist is granted. Applying the facts to the criteria set forth above, the Board finds that the most probative evidence establishes that entitlement to a 20 percent rating, and no higher, for right wrist cubital and carpal tunnel syndrome is warranted for the entire period on appeal. The July 2020 rating decision which assigned a 20 percent evaluation for cubital and carpal tunnel syndrome of the right wrist, effective December 14, 2019, based the effective date upon the date of the December 14, 2019, contracted peripheral nerves examination. As noted above, however, the clinical and lay evidence reflect similar symptoms prior to the date of that examination. The Board thus finds that the evidence is in relative equipoise as to whether the December 14, 2019, examination report reflects the severity and manifestations of the appellant’s service-connected right wrist cubital and carpal tunnel syndrome for the entire period on appeal. Indeed, the appellant has reported numbness and pain throughout the period on appeal and has not contended that his symptoms had increased in severity on the date of the December 2019 examination. The December 2019 contracted examiner described the appellant’s paralysis of the right median and ulnar nerves as mild. Although the Board is not bound by this description, the Board finds that the evidence of record supports that the severity is no more than mild. Throughout the period on appeal, muscle strength has been full and there has been no atrophy. The appellant noted that he worked to strengthen his right wrist so he could carry an equal amount of weight in both hands, but he still experienced giving way of the hand. Reflexes have been normal bilaterally. With respect to sensation, the appellant has only experienced decreased light touch sensation to the right hand and fingers throughout the period on appeal. January 2016 nerve conduction studies were negative for evidence of medial neuropathy, carpal tunnel syndrome, ulnar neuropathy, or cervical radiculopathy in either upper extremity. Tinel’s and Phalen’s tests were positive in July 2016, but both were negative in December 2019. Tinel’s sign was also negative in April 2016. The Board finds that these symptoms and findings do not more nearly approximate moderate incomplete paralysis. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to a rating of 20 percent, and no higher, for cubital and carpal tunnel syndrome of the right wrist for the entire period on appeal.   However, as the evidence preponderates against the award of a rating in excess of 20 percent for any portion of the period on appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.