Citation Nr: 21064260 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-29 382 DATE: October 19, 2021 ORDER From January 15, 2011, to May 31, 2017, entitlement to a rating of 30 percent for right wrist carpal tunnel syndrome is granted. From January 15, 2011, to May 31, 2017, entitlement to a rating of 20 percent for left wrist carpal tunnel syndrome is granted. From January 26, 2018, entitlement to a 30 percent rating for major depression, single episode in remission, is granted. REMANDED Entitlement to service connection for sacroiliac joint dysfunction, to include as secondary to spinal fusion, L5-S1, with degenerative disc disease, is remanded. Entitlement to a rating in excess of 20 percent for spinal fusion, L5-S1, with degenerative disc disease is remanded. Entitlement to a rating in excess of 30 percent for right wrist carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 20 percent for left wrist carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 10 percent for partial obstruction, lower colon with gastroesophageal reflux disease is remanded. Entitlement to a rating in excess of 30 percent for major depression, single episode in remission, is remanded. Entitlement to a separate rating for right lower extremity radiculopathy is remanded. Entitlement to a separate rating for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. From January 15, 2011, to May 31, 2017, the Veteran's right wrist carpal tunnel syndrome is characterized by moderate, incomplete paralysis of a major limb. 2. From January 15, 2011, to May 31, 2017, the Veteran's left wrist carpal tunnel syndrome is characterized by moderate, incomplete paralysis of a minor limb. 3. From January 26, 2018, the Veteran's major depression, single episode in remission, is characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood and anxiety. CONCLUSIONS OF LAW 1. From January 15, 2011, to May 31, 2017, the criteria for a disability rating of 30 percent for right wrist carpal tunnel syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124A, Diagnostic Code 8515. 2. From January 15, 2011, to May 31, 2017, the criteria for a disability rating of 20 percent for left wrist carpal tunnel syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124A, Diagnostic Code 8515. 3. From January 26, 2018, the criteria for a disability rating of 30 percent for major depression, single episode in remission, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from January 2002 to January 2005. In July 2021, the Veteran withdrew her request for a Board hearing. In October 2021, the Veteran's representative requested an extension of time to submit additional evidence. The Board denies this extension, as granting it would only delay the award of benefits to the Veteran and delay the development described below. As all issues on appeal are being granted or remanded, the Veteran will not be prejudiced by the denial of this extension request. She will still have time to submit medical evidence while her appeals are on remand. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Carpal Tunnel Syndrome Diagnostic Code 8515 provides ratings for paralysis of the median nerve. 38 C.F.R. § 4.124a. With mild, incomplete paralysis, a 10 percent rating is provided for the minor and major limbs. Id. With moderate, incomplete paralysis, a 20 percent rating is provided for the minor limb and a 30 percent rating is provided for the major limb. Id. With severe, incomplete paralysis, a 40 percent rating is provided for the minor limb and a 50 percent rating is provided for the major limb. Id. With complete paralysis, a 60 percent rating is provided for the minor limb and a 70 percent rating for the major limb. Id. Complete paralysis is characterized 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 (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. Id. The term "incomplete paralysis," with this and other 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 partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying 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. 1. From January 15, 2011, to May 31, 2017, entitlement to a rating of 30 percent for right wrist carpal tunnel syndrome is granted. 2. From January 15, 2011, to May 31, 2017, entitlement to a rating of 20 percent for left wrist carpal tunnel syndrome is granted. For bilateral carpal tunnel syndrome, service connection is established from January 19, 2005. For the right wrist, she is rated at 10 percent from January 19, 2005, and 30 percent from May 31, 2017. For the left wrist, she is rated at 10 percent from January 19, 2005, and 20 percent from May 31, 2017. All ratings are under Diagnostic Code 8515. On November 15, 2011, the Veteran filed a claim for an increased rating. In September 2013, the RO denied the Veteran's claim. The Veteran did not submit an NOD, but within a year, on May 19, 2014, the Veteran filed a claim for a higher rating, which represents new and material evidence under 38 C.F.R. § 31.56(b) so the Veteran's appeal stems from her November 15, 2011, claim. The evidence supports the existence of moderate, incomplete paralysis for the period from January 15, 2011, to May 31, 2017. The August 2013 VA nerves examination indicates that the Veteran's wrist "condition has stayed the same" since service. For both wrists, there is no constant pain, no intermittent pain, no paresthesias and/or dysesthesias, and no numbness. Muscle strength, reflexes, and senses are all normal. Overall severity is characterized by moderate, incomplete paralysis of the median nerve. Her wrist disorder prohibits "repetitive work with the bilateral wrists." In a May 2015 VA nerves examination, the Veteran describes numbness, tingling, pain, weakness, and poor grip. She "reports dropping things." She was given braces but "had difficulty wearing while working and typing." She experiences mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness but no constant pain. Muscle strength, reflexes, and senses are normal. Overall severity is characterized as normal. Regarding the ability to work, because of her wrist disorder, the Veteran "needs to have correct ergonomics to prevent wrist pain." Taken together, the evidence indicates the existence of functional impairment for the period from January 15, 2011. The Veteran is unable to do certain types of motions, has difficulty gripping, and requires ergonomics. Further, the earliest examination during this time periods contains a finding of "moderate, incomplete paralysis" for overall severity. In light of this finding and the evidence of functional impairment, the Board finds that for this period on appeal the overall severity of the Veterans carpal tunnel syndrome is moderate, incomplete paralysis. This finding applies to both wrists, supporting a 30 percent rating for the right (major) wrist and a 20 percent rating for the left (minor wrist). As will be explained below, the issue of entitlement to higher ratings shall be remanded. Major Depression Diagnostic Code 9434 provides compensation for major depressive disorder under the General Formula for Rating Mental Disabilities. 38 C.F.R. § 4.130. Under that code, a 30 percent rating is provided when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. As this claim was certified to the Board after August 4, 2014, DSM-5 is applicable to the claim. Service connection is in effect for major depression but not for other mental disorders. The Board is precluded from differentiating between symptoms of a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181 (1998). 3. From January 26, 2018, entitlement to a 30 percent rating for major depression, single episode in remission, is granted. Service connection is in effect for major depression at an initial rating of 10 percent from January 19, 2005, at 70 percent from July 17, 2007, and at 10 percent from March 4, 2008. All ratings are under Diagnostic Code 9434. On January 26, 2018, the Veteran filed a claim for an increased rating. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). From January 26, 2018, the evidence supports a rating of 30 percent. In the March 2018 VA mental disorders examination, the Veteran describes sleep problems and feeling "anxious and worried about a variety of things" with low energy. There have been "some fluctuations in her mood" due to her recent move. In a November 2019 VA medical record, the Veteran describes anxiety. Her VA provider notes putting her on medication. In a January 2020 VA medical record, the Veteran indicates anxiety on a scale of 7/10. She indicates depression on a scale of 3/10. In a February 2020 VA medical record, the Veteran indicates anxiety on a scale of 5/10. She also indicates depression on a scale of 2/10. The evidence supports the existence of anxiety and depression that occasionally results in occupational and social impairment. Such symptoms appear to be constant despite the use of medications. Giving the Veteran the benefit of the doubt, the Board finds that this evidence supports a rating of 30 percent. As explained below, entitlement to a rating in excess of 30 percent is being remanded. REASONS FOR REMAND 1. Entitlement to service connection for sacroiliac joint dysfunction, to include as secondary to spinal fusion, L5-S1, with degenerative disc disease, is remanded. A June 2017 VA medical opinion concludes that the Veteran's sacroiliac joint dysfunction was less likely than not caused or aggravated by her spinal fusion, L5-S1, with degenerative disc disease, for which service connection is established. The examiner does not provide separate bases for aggravation and causation. Atencio v. O'Rourke, 30 Vet. App. 74, 8991 (2018). An addendum opinion is required. 2. Entitlement to a rating in excess of 20 percent for spinal fusion, L5-S1, with degenerative disc disease is remanded. 3. Entitlement to a rating in excess of 30 percent for right wrist carpal tunnel syndrome is remanded. 4. Entitlement to a rating in excess of 20 percent for left wrist carpal tunnel syndrome is remanded. A VA examination must address the frequency, duration, characteristics, severity, and/or functional loss during flare-ups, based on all the evidence of record, including statements from the Veteran. See Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017). The Veteran's back and carpal tunnel examinations do not contain such findings. Additionally, for carpal tunnel syndrome the RO should conduct an examination based on the criteria for a wrist disorder. 5. Entitlement to a rating in excess of 10 percent for partial obstruction, lower colon with gastroesophageal reflux disease is remanded. The evidence indicates that the Veteran's colon disorder has worsened since her March 2018 VA examinations. Those examinations make no reference to heartburn or weight loss. A July 2019 VA medical record indicates "occasional heartburn." Given the evidence of increased symptomatology and the length of time since the Veteran's last VA examination, a remand is required to afford the Veteran with a contemporaneous VA examination to assess the current nature, extent, and severity of this disorder. Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to a rating in excess of 30 percent for major depression, single episode in remission, is remanded. A March 2018 VA mental disorders examination concludes that the Veteran's "current symptoms do not meet criteria for a mental disorder and her current symptoms are related to her post-military life and not from any military event or experience." Further, the Veteran's "previous diagnosis of depression related to service" has been in remission for a number of years. The examiner does not articulate the symptoms at issue and does not provide a basis for the conclusion that depression has resolved, and the findings in the VA examination report are contradictory, rendering the March 2018 VA psychiatric examination report inadequate for rating purposes. As such another VA psychiatric examination is necessary to adjudicate the Veteran's appeal of this issue. 7. Entitlement to a separate rating for right lower extremity radiculopathy is remanded. 8. Entitlement to a separate rating for left lower extremity radiculopathy is remanded. The Board has jurisdiction to consider the proper rating for radiculopathy as part of an appeal of an increased rating for a low back disability rating. Chavis v. McDonough, 34 Vet. App. 1, 16 (2021). In a June 2017 DRO hearing report, the Veteran argues that her sacroiliac joint dysfunction may be sciatic nerve pain arising from her back disorder for which service connection is established. All VA examinations specifically indicate that the Veteran does not have radiculopathy. This includes a June 2017 VA nerves examination, in which the examiner "finds no subjective or objective medical criteria at this time to substantiate a sciatica condition." The June 2017 examination does not address the findings of the May 2015 and August 2015 VA back examinations, both of which describe pain radiating into the Veteran's right lower extremity. A new examination and opinion are required that address this evidence. Additionally, on remand the RO should obtain all relevant VA treatment records dated from July 2020 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from July 2020 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge of the nature, extent and severity of her carpal tunnel syndrome, back disorder, colon disorder, and depression and the impact of these conditions on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: (a.) Whether the Veteran has any sacroiliac joint dysfunction. (b.) Whether it is at least as likely as not that any sacroiliac joint dysfunction was incurred in the Veteran's service. (c.) Whether the Veteran has any sacroiliac joint dysfunction that is proximately due to the Veteran's spinal fusion, L5-S1, with degenerative disc disease. (d.) Whether the Veteran has any sacroiliac joint dysfunction that was aggravated by the Veteran's spinal fusion, L5-S1, with degenerative disc disease. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion to determine the nature, extent, and severity of the Veteran's carpal tunnel syndrome, spinal fusion (L5-S1) with degenerative disc disease, and colon disorder. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran's carpal tunnel syndrome and spinal fusion (L5-S1) with degenerative disc disease is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. The examiner must also comment on the nature, extent, severity, and frequency of the Veteran's carpal tunnel syndrome, spinal fusion (L5-S1) with degenerative disc disease, colon disorder, and depression. The examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) should be conducted in accordance with the examination worksheets for Diagnostic Codes 5214, 5215, and 8515 and any other worksheets that the RO deems relevant. 5. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, extent, and severity of the Veteran's depression. 6. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature, onset and etiology of any radiculopathy. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any radiculopathy. In rendering this opinion, the examiner should address the May 2015 and August 2015 VA examination reports of radiating pain in the Veteran's right leg. (b.) Whether the Veteran has any radiculopathy that is proximately due to the Veteran's spinal fusion (L5-S1) with degenerative disc disease. (c.) Whether the Veteran has any radiculopathy that was aggravated by the Veteran's spinal fusion (L5-S1) with degenerative disc disease. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.