Citation Nr: 21005024 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-21 557 DATE: January 28, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to October 6, 2020, and in excess of 30 percent thereafter for right hand carpal tunnel syndrome is denied. FINDING OF FACT The Veteran’s right hand carpal tunnel syndrome affects the major extremity and is manifest by no more than mild incomplete paralysis prior to October 6, 2020, and thereafter, by no more than moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent prior to October 6, 2020, and in excess of 30 percent thereafter for right hand carpal tunnel syndrome have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from July 1970 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in June 2019. In August 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development and it has since returned for further appellate review. The Veteran contends that he is entitled to a higher rating because his right hand carpal tunnel syndrome has increased in severity. See June 2019 Hearing Tr. at 6. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). By way of history, the Veteran filed a claim of service connection for his right hand injury in April 2010. In an April 2013 rating decision, the Veteran was awarded service connection for his right hand carpal tunnel syndrome with a 10 percent rating effective April 2010, the date of claim. The Veteran disagreed with the assigned rating and filed an appeal. Later, in an October 2020 rating decision, the RO increased his rating to 30 percent effective October 2020, the date of a VA examination showing increased severity. Upon review of the evidence, the Board finds that a disability rating in excess of 10 percent prior to October 6, 2020, and in excess of 30 percent thereafter for right hand carpal tunnel syndrome is not warranted during the period on appeal. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under this criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. 38 C.F.R. § 4.124a. 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. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. The Board notes that “Mild,” as relevant to a physical condition, is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed January 25, 2021). “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 8515, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 8515, which establishes a successive, tiered rating structure, it represents the highest or most extreme level of incomplete paralysis. 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). Turning to the evidence, the Veteran underwent a VA hand examination in March 2012. The Veteran reported that his hands lock up when shoveling snow or any task requiring firm hand grip. He is unable to work in jobs that require swinging a hammer as he is unable to grip a hammer, or can only swing a hammer for less than 30 minutes. He can pick his guitar for about 15 minutes before his fingers become stiff. He reported flare-ups described as limited in using a guitar or hammer. On examination, the Veteran was able to perform repetitive use testing without additional limitation of motion. The Veteran did not report having tenderness or pain to palpation. In March 2013, the Veteran underwent a VA peripheral nerves examination. He reported moderate paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. On examination, strength was normal in elbow flexion and extension, wrist flexion and extension, grip, and pinch. Reflexes were normal for biceps, triceps, and brachioradialis. Regarding sensory testing, shoulder and inner/outer forearm was normal, and decreased in the hand/fingers. The examiner noted sensory loss to monofilament right hand long, index fingers, ring fingers, and small fingers. The Veteran did not have any muscle atrophy or trophic changes affecting the upper extremity. After considering the Veteran’s statements and the examination findings, the examiner determined the Veteran had mild incomplete paralysis of the median nerve of the right upper extremity. The Veteran was afforded another VA peripheral nerves examination in April 2017. He reported mild intermittent pain and numbness, and moderate paresthesias and/or dysesthesias. On examination, strength was normal in elbow flexion and extension, wrist flexion and extension, grip, and pinch. Reflexes were normal for biceps, triceps, and brachioradialis. Regarding sensory testing, shoulder area and inner/outer forearm was normal, and decreased for hand/fingers. The Veteran also had sensory loss on all 5 fingers in the right hand, volar, and dorsum. The Veteran did not have any muscle atrophy or trophic changes affecting the upper extremities. After considering the Veteran’s statements and the examination findings, the examiner determined that Veteran had mild incomplete paralysis in the median nerve. Most recently, the Veteran was afforded a VA peripheral nerves examination in October 2020. He reported moderate intermittent pain, numbness, and paresthesias and/or dysesthesias. On examination, strength was normal in elbow flexion and extension, and 4/5 on the wrist flexion and extension, grip, and pinch. Reflexes were normal for biceps and triceps, and hypoactive for the brachioradialis. Regarding sensory testing, light touch was normal in the shoulder and inner/outer forearm and decreased hand/fingers. The Veteran did not have muscle atrophy, but had trophic changes described as hair loss in both wrist areas with shiny skin. After considering the Veteran’s statements and the examination findings, the examiner determined the Veteran had moderate incomplete paralysis of the median nerve. Upon review of the record for the period prior to October 6, 2020, the Board finds that the disability rating of 10 percent under Diagnostic Code 8515 is appropriate for the right hand carpal tunnel syndrome because the most probative evidence of record is against a finding that the Veteran has more than mild incomplete paralysis of the median nerve. For instance, during the March 2013 examination, the Veteran reported moderate paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. Similarly, in the April 2017 examination, he reported mild intermittent pain and numbness, and moderate paresthesias and/or dysesthesias. These complaints are wholly sensory as were the abnormal findings on examination. The complaints and findings were considered by both examiners and determined to represent no more than mild incomplete paralysis. The Veteran’s complaints relayed during his hearing were also sensory in nature. Given the symptoms are wholly sensory and were determined by examiners to be no more than mild in severity, the Board finds that the incomplete paralysis is no more than mild in severity and does not warrant a rating in excess of 10 percent for this period. The Board recognizes that the 2013 and 2017 examiners also identified impairment of the ulnar nerve. However, the 2017 examiner indicated the Veteran’s service-connected carpal tunnel syndrome affected his median nerve. It is noted that the Veteran also has nonservice-connected cubital tunnel syndrome affecting his elbow. In this case, the service-connected disability is not shown to affect the ulnar nerve and rating the ulnar nerve impairment is not appropriate. For the period from October 6, 2020, the Board finds that a rating of 30 percent under Diagnostic Code 8515 is appropriate for the right hand carpal tunnel syndrome because the most probative evidence of record showed worsening of the Veteran’s disability at that time manifested by moderate incomplete paralysis of the median nerve. Notably, in addition to sensory complaints, the October 2020 examination also revealed trophic changes and minor impairment related to strength and reflexes. However, the evidence does not reflect severe incomplete paralysis. At the October 2020 examination the Veteran reported symptoms of moderate intermittent pain, numbness, and paresthesias and/or dysesthesias. At the conclusion of the examination, the examiner opined that the Veteran had at most, moderate incomplete paralysis of the median nerve. There was no indication of severe incomplete paralysis to warrant a 50 percent rating for the right hand carpal tunnel syndrome. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to October 6, 2020, and in excess of 30 percent thereafter for service-connected right hand carpal tunnel syndrome. 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. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.