Citation Nr: 21061691 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-56 657 DATE: October 5, 2021 ORDER A 50 percent rating is granted for de Quervain's syndrome, tendinopathy, and carpal tunnel syndrome of the right wrist with carpal instability, status post wrist interosseous nerve neurectomies (hereinafter "right upper extremity disability") for the entire period on appeal, subject to the law and regulations governing the award of monetary benefits. A 40 percent rating is granted for de Quervain's syndrome and carpal tunnel syndrome of the left wrist with carpal instability, status post wrist anterior and posterior interosseous nerve neurectomies (hereinafter "left upper extremity disability") for the entire period on appeal, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's right upper extremity is his "major" (dominant) extremity. 2. It is at least as likely as not that the Veteran's right upper extremity disability has been manifested by symptoms that more nearly approximate "severe" incomplete paralysis of the affected nerves throughout the period on appeal. 3. It is at least as likely as not that the Veteran's left upper extremity disability has been manifested by symptoms that more nearly approximate "severe" incomplete paralysis of the affected nerves throughout the period on appeal. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating for right upper extremity disability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8512. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 40 percent rating for left upper extremity disability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8512. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1996 to July 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO, in pertinent part, increased the ratings for right and left carpal tunnel syndrome, status post interosseous nerve neurectomies, to 30 and 20 percent, respectively, effective September 17, 2014. In December 2015, while the current appeal was pending, the RO recharacterized the Veteran's disabilities as right and left carpal tunnel syndrome with carpal instability, status post wrist interosseous nerve neurectomies, and increased the ratings therefor to 40 and 30 percent, respectively, effective March 18, 2014. In November 2019, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ recharacterized the Veteran's disabilities to include bilateral de Quervain's syndrome and right wrist tendinopathy. The prior 40 and 30 percent ratings were confirmed and continued, and the case was returned to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the AOJ furnished the Veteran a supplemental statement of the case relative to the matters herein decided in June 2021. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a rating in excess of 40 percent for right upper extremity disability 2. Entitlement to a rating in excess of 30 percent for left upper extremity disability The Veteran seeks higher ratings for his bilateral upper extremity disabilities. He is right-handed. As such, his right upper extremity is considered his "major" (i.e., dominant) upper extremity. 38 C.F.R. § 4.69. The Veteran's upper extremity disabilities are rated under 38 C.F.R. § 4.124a, DC 8512, pertaining to impairment of the lower radicular group of peripheral nerves, which includes the musculospiral (radial), median, and ulnar nerves. Mild incomplete paralysis of that group warrants a 20 percent rating for either extremity. Moderate incomplete paralysis warrants a 40 percent rating for the major extremity and 30 percent for the minor (i.e., non-dominant) extremity. Severe incomplete paralysis warrants a 50 percent rating for the major extremity and 40 percent for the minor extremity. Complete paralysis (with paralysis of all of the intrinsic muscles of the hand, and some or all of the flexors of the wrist and fingers (substantial loss of use of the hand)) warrants a 70 percent rating for the major extremity and 60 percent for the minor extremity. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than apply 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All of the evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for "mild" include not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. The Board also acknowledges that VA's Adjudication Manual, M21-1, III.iv.4.N.4.c (November 16, 2017) discusses the terminology in 38 C.F.R. § 4.124a, DCs 8510-8730. The Manual indicates with regard to "mild": As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. The Manual indicates with regard to "moderate": Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Manual indicates with regard to "severe": In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). Prior to November 2017 revisions, VA's Adjudication Procedures Manual M21-1, Part III, Subpart iv, Chapter 4, § G(4)) defined "mild" incomplete paralysis as demonstrating subjective symptoms or diminished sensation; "moderate" incomplete paralysis as featuring the absence of sensation confirmed by objective findings; and "severe" incomplete paralysis as featuring more than sensory findings (such as atrophy, weakness, and diminished reflexes). In June 2016, VA amended the M21-1 "to further clarify the intent of VA's policy," and the relevant portion of the M21-1 manual included the following: Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. The United States Court of Appeals for Veterans Claims held in Miller v. Shulkin, 28 Vet. App. 376, 380 (2017), that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." The M21-1 is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). Nevertheless, it does provide useful guidance in defining these terms, particularly if the Veteran demonstrates impairment consistent with higher rating(s) than currently in effect. Stated another way, the Board will look to see if there are findings that would warrant a higher rating under the M2-1 provisions, but will not deny the benefit sought on appeal if those provisions are not satisfied. Turning to the evidence in this case, the record reflects that the Veteran had surgery on his bilateral wrists during service. Thereafter, he developed complications, including chronic pain. In May 2015, the Veteran underwent a VA peripheral nerve conditions examination. The examiner confirmed a diagnosis of bilateral carpal tunnel syndrome, status post neurectomies. The Veteran reported having numbness/tingling of the fingers and thumb on a daily basis that was momentary and usually caused by certain movements. On examination, he was noted to have moderate numbness with moderate paresthesias and/or dysesthesias of both upper extremities. Deep tendon reflexes at the brachioradialis were absent, Tinel's sign was positive, bilaterally, and there was decreased sensation in the hands and fingers. Wrist flexion, wrist extension, and grip strength were noted to be 4/5. There was no atrophy, nor were any trophic changes noted, and the examiner indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him. The examiner noted moderate, bilateral, incomplete paralysis of the musculospiral (radial), median, and ulnar nerves. On a VA wrist examination in May 2015 by the same examiner, it was noted that the Veteran was right-hand dominant. He reported that he had flare-ups of his wrist condition (status post interosseous nerve neurectomies) that caused him trouble with holding, gripping, carrying, lifting, chores, and typing (use of a computer). On examination, the range of motion in both wrists was normal. No pain was observed as to the right wrist. Pain was noted in all planes of motion of the left wrist, but did not cause functional loss. Nor was any such loss noted on repetitive use or repeated use over time. It was also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Muscle strength was 4/5, bilaterally, on flexion and extension; there was no muscle atrophy or ankylosis; and the examiner indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him. In terms of occupational impairment, the examiner indicated that the Veteran should avoid the use of tools, machinery, typing, writing, lifting/carrying, gripping, and pulling/pushing. In his June 2015 notice of disagreement, the Veteran described limitations associated with his bilateral wrist disabilities. He indicated that he could not tie his shoes, open any screw-top lid, hold a glass, write legibly, or type. He stated that he was in a hard brace for his left hand all of the time, and that any movement caused debilitating pain. As to the right hand, he stated that he was in a hard brace 50 percent of the time and that the right hand did not hurt as bad as the left. A December 2015 letter prepared by a VA physician noted a diagnosis of de Quervain's tenosynovitis and described the condition as "quite severe." The physician noted that the Veteran had "profound grip strength limits, inability to grab, torque, or perform fine dexterity motions like typing or prolonged holding of writing implements." The examiner noted that the condition had been "chronic for several years" but only formally diagnosed in December 2014. The Veteran underwent another VA wrist examination in October 2016. The examiner noted diagnoses of osteoarthritis of the right wrist, bilateral de Quervain's syndrome, and bilateral carpal instability. The Veteran reported that he had severe burning pain in both hands, "frequent, unstoppable tremors," that his hands "stopped working," that was unable to do anything involving dexterity or fine manipulation, and that he had "totally lost the ability to use his hands." He reported flare-ups involving severe, acute exacerbations of bilateral wrist pain several times per day. On examination, he had a full range of motion in both wrists, with pain. He declined repetitive use testing due to pain he experienced on initial testing, and the examiner indicated that he was unable to say, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over time or during flare-ups. Muscle strength was 4/5, bilaterally; there was no atrophy or ankylosis; and the examiner indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him. The Veteran also underwent a VA hand and fingers examination in October 2016. On range of motion testing, he exhibited pain, but had full extension of all four fingers and the thumb. There was no gap between the pad of the thumb and the fingers, and there was no gap between any of the fingers and the proximal transverse crease of the palm on maximum flexion. There was no atrophy and no ankylosis. Grip strength was noted to be 4/5, bilaterally, although the examiner indicated that he was unable to explain the lack of strength based solely on the diagnoses noted using organic, physiologic, and anatomic rationale. The examiner noted that there was no additional loss of function after repetitive use testing; that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use over time; and that he could not say, without mere speculation, whether pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups. The Veteran also underwent another VA peripheral nerves examination in October 2016. He reported constant pain, stated that he had to wear bilateral wrist braces at all times, and reported that he could not use either hand because they "do not hold and do not stop shaking." On examination, he had moderate constant pain of the bilateral upper extremities, moderate bilateral numbness, and moderate bilateral paresthesias and/or dysesthesias. Muscle strength was diminished (4/5) on bilateral flexion and extension of the wrists, as well as with grip and pinch; reflexes were normal; and there was decreased sensation in the hands/fingers. The examiner indicated that the musculospiral (radial) nerve was normal, as was the ulnar nerve, but that the Veteran had mild incomplete paralysis of the median nerve, bilaterally. The examiner indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him. The examiner felt that the Veteran's complaints of bilateral wrist/hand weakness, pain, and loss of function could not be explained on an organic physiological and anatomical basis by way of carpal tunnel syndrome, carpal instability, and interosseous nerve neurectomies, but also noted the presence of de Quervain's tenosynovitis, which he noted typically occurs after excessive repetitive movement of the wrists and hands, rather than as a result on an acute fall injury. An additional VA peripheral nerves examination was conducted in December 2019. The Veteran reported symptoms of severe, intermittent pain at the medial, lateral, and volar surfaces of both wrists, with occasional sharp, shooting pain; moderate and consistent numbness of both hands, specifically of the thumbs and index fingers; and thumb weakness after repetitive use with difficulty grasping. It was noted that he was right-hand dominant. On examination, he had moderate, intermittent pain and numbness, bilaterally, with decreased strength (4/5) on bilateral wrist flexion and pinch on the left. Phalen's and Tinel's signs were positive, bilaterally. There was no atrophy or trophic changes, and reflex and sensory examinations were normal. The examiner noted that the Veteran had bilateral interosseous neurectomy surgeries for chronic intractable bilateral wrist pain which resulted in residuals of chronic wrist pain with repetitive use of the wrists which was functionally disabling. The examiner described the condition as "severe." The examiner noted that nerves affected included the median nerve and the lower radicular group, resulting in moderate, bilateral incomplete paralysis. The examiner found that the Veteran's diagnosed de Quervain's syndrome and carpal tunnel syndrome had "significant overlap" in that "both cause nerve pain, numbness, and weakness in the hands" and that therefore "it is not possible to distinguish the symptoms and effects of the service-connected wrist disabilities from those attributable to any other diagnosed wrist disabilities." The examiner further indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him, but that he should avoid all repetitive use of the hands, to include all gripping, grasping, typing, and writing. On a subsequent VA wrist examination in May 2021, the examiner noted diagnoses of bilateral de Quervain's syndrome and carpal instability, right wrist tendinopathy, right wrist osteoarthritis, and status post bilateral wrist anterior and posterior interosseous neurectomies. The Veteran reported progressively worse severe bilateral wrist pain, with severe daily flare-ups of sharp pain and limited repetitive use. On examination, he had painful limitation of motion of both wrists in all planes except radial deviation, resulting in limited dexterity. There was no additional loss with repetitive use testing, but the examiner did estimate that there would be additional loss with repeated use over time and during flare-ups, except with respect to radial deviation. There was no atrophy or ankylosis, and the examiner indicated that the Veteran's functioning was not so diminished that an amputation with prosthesis would equally serve him. The examiner attributed the Veteran's bilateral de Quervain's syndrome to his other, service-connected wrist disabilities, opining that it was impossible to reliably distinguish the symptoms and effects of the disabilities that were present. Following review of the record, and affording the Veteran the benefit of the doubt, the Board finds that his upper extremity disabilities have been manifested by symptoms that more nearly approximate "severe" incomplete paralysis of the lower radicular group of nerves throughout the period on appeal. The reports of record have variously indicated that the radial, medial, and/or ulnar nerves are implicated in his disabilities. As illustrated above, his disabilities are shown to have been manifested by, among other things, numbness, paresthesias/dysesthesias (including severe burning pain), weakened movement, decreased grip strength, and painful and/or limited motion. He has reported difficulty with activities such as holding, gripping, carrying, lifting, chores, typing, tying his shoes, and writing legibly, and has reported that he has daily flare-ups involving severe, acute exacerbations of bilateral wrist pain. Although examiners have attached various descriptors to the Veteran's level of impairment, a December 2015 VA physician described the Veteran's de Quervain's tenosynovitis as "quite severe," with "profound" grip strength limits, and a December 2019 VA examiner similarly described the Veteran's condition, including the de Quervain's tenosynovitis, as severe. Based on the totality of the record, and resolving doubt in the Veteran's favor, the Board finds that ratings of 50 and 40 percent, respectively, are warranted for his right and left upper extremity disabilities under DC 8512. The preponderance of the evidence is against the assignment of ratings higher than that, however. None of the medical evidence reflects that the Veteran has complete paralysis of the affected nerves, with paralysis of all of the intrinsic muscles of the hand and some or all of the flexors of the wrist and fingers so as to warrant higher ratings under DC 8512. The Board has also considered whether separate or higher ratings might be available under other provisions of law. In that regard, the Board notes, first, that DCs 8512 (pertaining to impairment the lower radicular group of nerves), 8514 (pertaining to the radial nerve), 8515 (pertaining to the median nerve), and 8516 (pertaining to the ulnar nerve) all contemplate limited function of the hand, wrist, and/or fingers. Because they contain criteria that are overlapping, separate ratings cannot be assigned under those codes. See 38 C.F.R. § 4.14. Although ratings in excess of 50 and 40 percent, respectively, are available under DCs 8514, 8515, and 8516 individually, the greater weight of the evidence is against a finding that a higher rating is warranted for complete paralysis of the radial, median, or ulnar nerve under DC 8514 (contemplating 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; cannot 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 occurs only as the greatest rarity); DC 8515 (with 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 (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances); or DC 8516 (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 reverse), cannot adduct the thumb; flexion of wrist weakened). As noted previously, none of the medical evidence reflects that the Veteran has complete paralysis of any of the affected nerves. Due to overlap of symptoms, separate ratings also cannot be assigned under DC 8512, DCs 5228-30 (pertaining to limitation of motion of the fingers and thumb), and DCs 5214-15 (pertaining to limitation of motion of the wrist). In addition, the evidence does not establish that the Veteran has ankylosis of either wrist, and the 50 and 40 percent ratings now assigned for his upper extremity disabilities equals or exceeds that which would otherwise be available under DCs 5228-30 and 5215, even if the maximum ratings under those codes were assignable. See 38 C.F.R. § 4.25. Nor does the evidence establish that the Veteran has lost the use of either hand as defined by VA. Applicable regulations contemplate that "loss of use of a hand" will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i). The determination is made on the basis of the actual remaining function, i.e., whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. By regulation, complete ankylosis of two major joints of an extremity will constitute loss of use of the hand. Id. Here, the Veteran's examiners have repeatedly and expressly indicated that the Veteran's functioning has not been so diminished that an amputation with prosthesis would equally serve him. In addition, his service-connected disability is not manifested by complete ankylosis of two major joints of either upper extremity. As such, the weight of the evidence is against a finding that the Veteran has lost the use of either hand, as that term is contemplated in the law. In arriving at this conclusion, the Board has considered the Veteran's lay assertions regarding the diminished use of his hands. However, an assessment with respect to whether "no effective function remains other than that which would be equally well served by an amputation stump as the site of election below the elbow with use of a suitable prosthetic appliance" is a complex determination that requires specialized knowledge of the sort of functioning that could be attained with a prosthetic device as compared to current functioning. The evidence does not reflect that the Veteran has that sort of expertise. In any event, the opinions offered by his VA examiners are more probative. For all of the foregoing reasons, the Board finds that ratings of 50 and 40 percent are assignable for the disabilities of the Veteran's right and left upper extremities, respectively, but that no higher or separate ratings are warranted beyond that. To that extent, the appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.