Citation Nr: 21064247 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-12 912 DATE: October 19, 2021 ORDER Prior to July 27, 2017, entitlement to a disability rating of 50 percent, but no higher, for right wrist carpal tunnel syndrome with right hand weakness is granted. Since July 27, 2017, entitlement to a disability rating in excess of 50 percent for right wrist carpal tunnel syndrome with right hand weakness is denied. FINDING OF FACT The probative evidence of record demonstrates the Veteran's right wrist carpal tunnel syndrome with right hand weakness manifested as severe incomplete paralysis of the median nerve of the major extremity, for the entire period on appeal. CONCLUSIONS OF LAW 1. Prior to July 27, 2017, the criteria for entitlement to a disability rating of 50 percent, but no higher, for right wrist carpal tunnel syndrome with right hand weakness have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8515. 2. Since July 27, 2017, the criteria for entitlement to a disability rating in excess of 50 percent for right wrist carpal tunnel syndrome with right hand weakness have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8515. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the United States Army on active duty from October 1970 to October 1972. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An October 2017 rating decision granted an increased evaluation of right carpal tunnel syndrome with right hand weakness, to 50 percent effective July 27, 2017. As the full benefit was not granted, the Veteran's claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The claim was previously before the Board in August 2018. The Veteran's above claim was one of seven issues remanded for further development. The Veteran submitted a timely VA Form 10182, Notice of Disagreement, selecting the Appeals Modernization Act (AMA) appeals process for the claims of service connection for atrial fibrillation, to include as due to herbicide exposure; service connection for hypertension, to include as due to herbicide exposure; service connection for head and neck cancer, to include as due to herbicide exposure; service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure; and entitlement to a total disability rating based on individual unemployability (TDIU). An August 2021 Board letter notified the appellant that his appeal had been placed on the Direct Review docket. The Board will not address these issues in the present decision. The Board will adjudicate the Veteran's issues on appeal currently within the Direct Review docket as directed under the AMA rules, at another date in time. As the Veteran omitted the claim to entitlement to an increased disability rating for his service-connected right wrist carpal tunnel syndrome in his VA Form 10182, this appeal remains in the Legacy appeal process and is again before the Board for adjudication at this time. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The Board determines 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, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating of 50 percent, but no higher, for right wrist carpal tunnel syndrome with right hand weakness prior to July 27, 2017 Entitlement to a disability rating in excess of 50 percent for right wrist carpal tunnel syndrome with right hand weakness since July 27, 2017 The Veteran contends that his symptoms of his right wrist carpal tunnel syndrome warrant an increased disability rating. The Veteran's right wrist carpal tunnel syndrome is currently rated under DC 8515 for paralysis of the median nerve. The evidence reflects that the Veteran is right-handed; accordingly, his right hand is his major (dominant) extremity. For the major (dominant) extremity: a 10 percent disability rating is warranted for mild incomplete paralysis; a 30 percent disability rating is warranted for moderate incomplete paralysis; and a 50 percent disability rating is warranted for severe incomplete paralysis. 38 C.F.R. § 4.124a, DC 8515. A 70 percent disability rating is warranted for complete paralysis of the median nerve, with the following: 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; and pain with trophic disturbances. Id. The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that the Board's decisions are "equitable and just." See 38 C.F.R. § 4.6. A review of the evidence of record, in a light most favorable to the Veteran, reveals that the Veteran's right wrist carpal tunnel syndrome with weakness most closely approximates the severe incomplete paralysis rated as 50 percent disabling under 38 C.F.R. § 4.124a, DC 8515, for the entire appeal period. The claims file contains the Veteran's private medical record from July 2010, noting the Veteran received treatment for recurrent paresthesias of his fingers. The private treatment record noted the Veteran's nerve conduction studies revealed absent right median sensory responses and decreased sensory amplitudes in both upper extremities. The Veteran's private electromyography (EMG) and nerve conduction study demonstrated electrodiagnostic evidence of severe, median mononeuropathy at the right wrist (carpal tunnel syndrome), with ongoing denervation. The Veteran underwent a VA examination in August 2011 to address his right wrist disability. The VA examination confirmed the Veteran's persistent right carpal tunnel syndrome with moderate median nerve sensory neuropathy and mild median nerve motor neuropathy, status post multiple carpal tunnel surgical releases, most recent of which occurred in September 2010. Upon examination, the Veteran complained of significant numbness, daily electrical shooting pains, and decreased grip strength in his right hand. August 2011 imaging revealed no significant changes from the Veteran's July 2007 examination. The Veteran submitted a May 2017 private electrodiagnostic consultation. The Veteran's private treating orthopedist characterized the Veteran's right wrist neuropathy as recurrent severe carpal tunnel syndrome with both sensory and motor axon loss. The private physician doubted the Veteran's carpal tunnel syndrome would improve with non-operative care. The RO provided the Veteran a VA peripheral nerve condition examination in July 2017. The VA examiner noted the Veteran's carpal tunnel syndrome with right hand weakness began in 1974. The examination reported the Veteran's symptoms attributable to his right wrist carpal tunnel syndrome as severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness. The VA examiner noted the Veteran's condition was active and the diagnosis was unchanged since the last examination. The examination demonstrated reduced muscle strength testing. The VA examiner recorded the Veteran's right wrist flexion, wrist extension, grip, and pinch (thumb to index finger) as 3/5 active movement against gravity. The Veteran's sensory examination revealed decreased sensation for light touch for the Veteran's right hand and fingers. The VA examiner concluded the Veteran's right wrist carpal tunnel syndrome resulted in severe incomplete paralysis. The VA examiner noted the Veteran's condition was active and the diagnosis was unchanged since the last examination. The evidence of record establishes the Veteran suffered severe right wrist carpal tunnel syndrome with right hand weakness for the entirety of the period on appeal. The July 2017 VA examination revealed the Veteran experienced severe symptoms attributable to the Veteran's diagnosis of right wrist carpal tunnel syndrome, which are demonstrated throughout the Veteran's medical records. Notably, the Veteran's May 2017 private electrodiagnostic consultation and August 2011 VA examination reported that the Veteran demonstrated both sensory and motor neuropathy. Further, the Veteran's July 2010 private EMG and nerve conduction study showed the Veteran presented absent of sensory responses in his right fingers. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran's right wrist carpal tunnel syndrome with right hand weakness most closely approximates severe incomplete paralysis of the Veteran's dominant arm for the entire period on appeal, compensated as 50 percent disabling under 38 C.F.R. § 4.124a, DC 8515. The Board recognizes there was some fluctuation in the nature and severity of the Veteran's symptoms associated with lower disability ratings. However, overall, the evidence of record demonstrates that the type and extent, frequency and severity of the Veteran's symptoms have been relatively consistent throughout the pendency of the Veteran's appeal, and more nearly approximates the criteria required for a 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8515. The evidence of record is against a finding of a rating in excess of 50 percent under DC 8515, as the record contains no evidence during the appeal period that the Veteran presented symptoms of complete paralysis of the median nerve of the major extremity. 38 C.F.R. § 4.124a. Although the Veteran has experienced symptoms of severe carpal tunnel syndrome with both sensory and motor axon loss, including weakness and absence of sensation in his right hand, the evidence of record has not shown the Veteran experienced complete paralysis of the right median nerve, as displayed by the Veteran's hand with the following: 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; or pain with trophic disturbances. Id. The Board has also considered whether separate ratings are warranted for the Veteran's scarring associated with his right wrist carpal tunnel syndrome. Scars other than on the head, face, or neck can be rated under 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, and 7805 based on size, nature, and disabling effects. Regarding scars related to the right wrist carpal tunnel release surgical procedures, the Board notes that the Veteran is already in receipt of separate ratings for scars secondary to his right wrist carpal tunnel syndrome. Further, since July 27, 2017, the Veteran's right wrist carpal tunnel syndrome with right hand weakness disability rating, in combination with the ratings for the Veteran's right wrist arthritis, right thumb fracture, and residual scars affecting the right wrist, have a total combined rating of 70 percent for disabilities of the right wrist and hand. See 38 C.F.R. §§ 4.71a, 4.118, 4.124a. The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed; in this instance 70 percent for the loss of use of the major hand. 38 C.F.R. §§ 4.68, 4.71a, DC 5125. Thus, the Veteran's combined disability rating, as of July 27, 2017, is the maximum schedular evaluation available for the Veteran's right wrist and hand extremity. See 38 C.F.R. § 4.68. Accordingly, the Board finds the Veteran's right wrist carpal tunnel syndrome with right hand weakness warrants the evaluation of a 50 percent disability rating, but no higher, for the period on appeal, under DC 8515. 38 C.F.R. §§ 4.3, 4.7, 4.124a. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.