Citation Nr: 21070683 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-23 604 DATE: November 24, 2021 ORDER A higher 30 percent rating, but no greater, is granted throughout the period under review for carpal tunnel syndrome (CTS) of the right upper extremity. Entitlement to a total disability rating based on individual unemployability (TDIU) also is granted. REMANDED Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. Entitlement to a rating in excess of 10 percent for a right elbow disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a left-hand disability is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the CTS of the Veteran's right upper extremity has caused what has amounted to "moderate" incomplete paralysis of the affected nerve. 2. His service-connected disabilities render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to higher 30 percent rating, though no greater, for CTS of the right upper extremity. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.21, 4.120, 4.124a, Diagnostic Code (DC/Code) 8515. 2. The criteria also are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to August 2014. This appeal to the Board of Veterans' Appeals (Board) is from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a "virtual" teleconference hearing in July 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In appealing for a higher schedular rating for his disabilities, including in his hearing testimony, the Veteran spoke of the functional impact his service-connected disabilities have on his employability. He therefore has raised the issue of derivative entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU also is warranted. 1. A higher 30 percent rating, but no greater, is granted throughout the period under review for CTS of the right upper extremity This service-connected disability is rated under 38 C.F.R. § 4.124a, DC 8515. The Veteran's right hand is his dominate hand, thus, is considered his "major" extremity". CTS occurs when the median nerve, which runs from the forearm into the palm of the hand, becomes pressed or squeezed at the wrist. See CTS Fact Sheet, National Institute of Neurological Disorders and Stroke, https://www.ninds.nih.gov/disorders/patient-caregiver-education/fact-sheets/carpal-tunnel-syndrome-fact-sheet. Thus, CTS is rated as a disease of the peripheral nerves. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8515. Under these criteria, mild incomplete paralysis is rated as 10-percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30-percent disabling for the major extremity and as 20-percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50-percent disabling for the major extremity and as 40-percent disabling for the minor extremity. For complete paralysis, meaning 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, the major extremity is rated at 70 percent and the minor extremity is rated at 60 percent. 38 C.F.R. § 4.124a. The term "incomplete paralysis" 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the 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." 38 C.F.R. § 4.6. Turning now to the relevant evidence of record, the Veteran was examined by VA in November 2014. The examiner diagnosed right hand CTS. He noted that the Veteran's right-hand condition limits his ability to repetitively flex his right wrist or to do prolonged activities with the right wrist flexed or extended. Private treatment records note the Veteran's report of right-hand pain and numbness. During his July 2021 hearing before this Board, the Veteran testified that he experiences pain and swelling with the use of his right hand. He reported that he is unable to hold or grasp things. His wife testified that she resultantly "pretty much does everything" for him. When considering this evidence in its entirety, the Veteran's right upper extremity CTS more nearly approximates "moderate" incomplete paralysis of the affected nerve. Therefore, he is entitled to a higher 30 percent rating throughout the period under consideration. 38 C.F.R. §§ 4.3, 4.7. In pertinent part, the record documents the Veteran's complaints of pain, numbness, and weakness in his right hand. Moreover, the law mandates resolving all reasonable doubt regarding the degree of disability in his favor, 38 C.F.R. § 4.3, and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Therefore, the Board finds that he is entitled to a higher 30 percent (though no greater) rating for his right upper extremity CTS, throughout the period under consideration. The evidence does not show, however, that at any time he has had "severe" incomplete paralysis of the affected nerve to warrant an even higher evaluation under Code 8515. Thus, the criteria for an even greater 50 percent rating are not met. Notably, during the July 2021 hearing before this Board, the Veteran's representative indicated the Veteran would be content or satisfied with this higher 30 percent rating if granted for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (allowing a Veteran to specify what higher rating he will be content in receiving) 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). This includes work that is sporadic. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that "substantially gainful employment" has both an economic and non-economic component. The economic component includes the Veteran's ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran's actual ability to work. Factors to be discussed include (1) the Veteran's history, education, skill, and training; (2) whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The central inquiry in a claim for TDIU is "whether the Veteran's service [-] connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities are: depression, rated as 50-percent disabling; left shoulder degenerative arthritis with impingement syndrome, rated as 20-percent disabling; right shoulder degenerative arthritis with impingement syndrome, rated as 20-percent disabling; right elbow osteoarthritis, rated as 10 percent disabling; left elbow olecranon spur, rated as 10-percent disabling; bilateral plantar fasciitis with calcaneal spurs, rated as 10-percent disabling; lumbosacral spine strain, rated as 10-percent disabling; left knee patellar femoral syndrome, rated as 10-percent disabling; right knee patellar femoral syndrome, rated as 10-percent disabling; myocarditis; status/post rheumatic heart disease, rated as 10-percent disabling; right upper extremity carpal tunnel syndrome, now rated as 30-percent disabling as a result of this decision; and right and left great toe metatarsophalangeal joint osteophyte formation, Gilbert's syndrome and binge eating disorder, each rated as 0-percent disabling, so noncompensable. The combined schedular rating is 90 percent effectively since September 1, 2014. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Therefore, the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU are met. Thus, the remaining (and dispositive) question is whether these service-connected disabilities render the Veteran incapable of engaging in substantially gainful employment, and the Board concludes they do. The Veteran has not submitted a formal application for a TDIU, meaning a VA Form 21-8940. However, he testified during his July 2021 hearing before this Board that he has not had a full-time job since he retired from the military in 2014. He explained that, following service, he had worked briefly but only part-time, as a limousine driver and at a United Parcel Service (UPS) warehouse, but was unable able to complete the indoctrination period because of his disabilities. In January 2016, he reported to the Social Security Administration (SSA) that he had stopped working in November 2014 because of his disabilities, and he consequently is receiving disability benefits from this other Federal Agency, which is relevant, even if not necessarily determinative, of his VA claim for a TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Given the nature and severity of his service-connected disabilities, especially in combination, it certainly is as likely as not that, throughout the period being considered, the Veteran's service-connected disabilities have rendered him unemployable. The evidence shows that his service-connected depression has impaired his ability to engage in any occupations, in that, he has difficulty attending to tasks at hand, maintaining conversations, difficulty interacting with others, panic attacks, disturbed sleep causing, fatigue, and has gross impairment in his thought processes or communication. Notably, on March 2021 mental health examination, the VA examiner surmised the Veteran's major depressive disorder is totally debilitating from an occupational standpoint. Moreover, use of the word "substantially" suggests intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100-percent (i.e., totally) unemployable which, instead, is required for a 100 percent schedular rating for a mental disorder. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001); 38 C.F.R. § 4.130, DC 9434. Additionally, VA examiners have determined that the Veteran's right hand and low back disabilities impact his ability to work in that they limit his ability to repetitively flex his right wrist, conduct prolonged activities with this wrist flexed or extended, sit, or stand for prolonged periods of time, or lift more than 5 pounds. These significant limitations would make obtaining and maintaining any substantially gainful versus just marginal in comparison employment when considering his prior work experience and training very difficult, if not impossible. For these reasons and bases, the Board is granting this derivative TDIU claim. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left elbow disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a right elbow disability is remanded. The most recent VA examination to assess the severity of the Veteran's bilateral (so left and right) elbow disability was in October 2014. During his July 2021 Board hearing, the Veteran and his representative essentially asserted that the ratings assigned do not reflect the current severity of his right or left elbow disability. He therefore needs to be re-examined to reassess the severity of his bilateral elbow disability. 3. Entitlement to service connection for a left wrist disability is remanded. In November 2014, the Veteran underwent a VA examination to determine the nature and etiology of his left wrist disability. He reported wrist pain without a specific injury to his wrists that worsens with activity. The examiner diagnosed bilateral positive ulnar variance. However, the examiner did not provide an opinion as to etiology of the diagnosed positive ulnar variance. It is worth noting that positive ulnar variance is generally considered to be a congenital defect. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 3 8 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not also defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. The Court indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of this claimed condition, it was first necessary to clarify whether this condition is a congenital or developmental "disease" or "defect". See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If a "disease", an opinion would be required as to whether it was as likely as not aggravated by active military service beyond its natural progression. If instead a "defect", an opinion is required concerning whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. Additional medical comment is needed to assist the Board in making this necessary latter determination, 4. Entitlement to service connection for a left-hand disability is remanded. The Veteran contends that service connection is warranted for a left-hand disability. On November 2014 VA hand examination, the Veteran reported bilateral hand complaints. However, the examiner only diagnosed CTS of the left hand. Consequently, only the Veteran's right hand has been granted service connection. A July 2016 private treatment indicates the Veteran has bilateral CTS. An examination is needed to clarify whether the Veteran has a left-hand disability and, if so, whether it is related to service. Accordingly, these remaining claims are REMANDED for the following action: 1. Arrange for an examination of the Veteran to reassess the severity of his left and right elbow disabilities. The examiner must consider the history of these service-connected disabilities. All findings should be described in detail and address all applicable rating requirements. The examiner must also include rationale for all opinions expressed, preferably citing to supporting evidence in the file or accepted medical authority. 2. Arrange for a VA examination of the Veteran to determine the nature and likely cause of any right wrist disability or right-hand disability he may currently have. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a.) Please identify, by diagnosis, the Veteran's right wrist and right-hand disabilities. The diagnoses of positive ulnar variance and bilateral CTS must be discussed. (b) Regarding the right wrist, if the Veteran is found to have a congenital disability, please identify whether such disability is a congenital defect or a congenital disease and explain why. (For VA adjudication purposes, a defect is a condition that can neither improve nor worsen. A congenital disease is a congenital condition that is subject to improvement and/or worsening.) (c.) Please opine on whether the Veteran has right wrist pain that is separate and distinct from any diagnosed right wrist disabilities, to include the right ulnar positive variance. Rationale for the responses is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to examination findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.