Citation Nr: 21073026 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 11-28 942 DATE: December 7, 2021 ORDER Entitlement to an initial 10 percent rating for right carpal tunnel syndrome from February 9, 2010, to May 6, 2013, is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, from February 9, 2010, to May 6, 2013, the Veteran's right carpal tunnel manifested in mild incomplete paralysis of the right wrist. CONCLUSION OF LAW The criteria for an initial 10 percent rating for right carpal tunnel syndrome from February 9, 2010, to May 6, 2013, have been met. 38 U.S.C. § 5107 ; 38 C.F.R. § 4.124a , Diagnostic Code 8515. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from January 2005 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision. The claim was previously denied by the Board in May 2020. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In July 2021, after the parties stipulated to a joint motion for remand (JMR), CAVC vacated the Board's May 2020 decision in part, and remanded this claim for additional development consistent with the JMR. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to an initial 10 percent rating for right carpal tunnel syndrome from February 9, 2010, to May 6, 2013, is granted. In a March 2009 rating decision, the RO granted a 30 percent rating for the Veteran's bilateral carpal tunnel syndrome (dextral), effective from November 18, 2008. The Veteran filed for individual unemployability in February 2010, and the RO considered this a claim for increase of her service-connected disabilities. In a September 2010 decision the RO found that the Veteran's right carpal tunnel syndrome (CTS) was to be rated as noncompensable. She subsequently filed a notice of disagreement (NOD) with this decision in October 2010. While the claim was pending, in a September 2013 decision, the RO granted a rating of 10 percent for the right CTS, effective May 6, 2013. The claim was remanded by the Board for further development in February 2018 and subsequently denied by the Board in May 2020. As noted, the decision as to the Veteran's rating prior to May 6, 2013, was vacated and remanded to the Board by CAVC in a July 2021 JMR. Accordingly, the period on appeal is from the February 9, 2010, date of claim to May 6, 2013. The Veteran's right CTS is evaluated under 38 C.F.R. § 4.124a , Diagnostic Code 8515. A 10 percent disability rating is assigned for mild incomplete paralysis of either arm. For moderate incomplete paralysis, a 20 percent disability rating is assigned for a minor arm, and 30 percent for a major arm. For severe incomplete paralysis, a 30 percent rating is warranted for the minor arm, and a 40 percent rating for the major arm. The Veteran is right hand dominant, therefore, her right arm is her major arm. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.3. The words "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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. On VA examination in November 2008, the Veteran's right upper extremity was found normal, but she was positive bilaterally for Tinel's signs and the examiner diagnosed her with bilateral carpal tunnel syndrome. The examiner noted that bilateral carpal tunnel syndrome had moderate effects on chores, mild effects on shopping, exercise, and recreation, and prevented participation in sports. On VA examination in March 2010, the Veteran reported that her bilateral carpal tunnel syndrome had worsened since her last examination and that she had to leave her job as a secretary in August 2009 due to sharp and burning pains in her wrists, left greater than right. Occasional numbness and "pins and needles" sensation, that were worse at night, in the 4th and 5th digits was also reported. For treatment, she was taking both Lyrica and gabapentin, twice daily. She also was wearing bilateral hand splints occasionally. However, she only responded fairly to this treatment. Upon examination, the examiner found no motor impairment in the right upper extremity, particularly in the wrist extensors or finger extensors. Yet there was decreased pain and light touch sensation at the 4th and 5th digits on her right side, with the ulnar nerve affected. Again, Tinel's sign was positive. An associated April 2010 electrodiagnostic study found the Veteran's right upper extremity was normal. The examiner concluded that there was no clinical or electrodiagnostic evidence of carpal tunnel syndrome. In October 2010, the Veteran submitted a letter from her private clinician. The Veteran's treating clinician stated that the Veteran used wrist bands for her carpal tunnel syndrome and that her carpal tunnel symptoms were still present. The Veteran presented with pain and pinprick sensations that radiated to her elbow (unspecified which elbow) and resulted after prolonged use of her hands. VA medical records between August 2009 to September 2011 indicate the Veteran was seen numerous times for pain in her wrists. In August 2009, increased pain, from a 4 out of 10 to a 7 out of 10 was reported after she used her wrists for work. The pain also led to decreased performance in ADL's (activities of daily living), according to the Veteran. A month later, the Veteran also reported tingling in her hands. Her pain was tolerable with medication, so her prescription for gabapentin was increased. In September 2011, reduced wrist range of motion to 40 degrees (type of flexion not specified) was also noted. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. To warrant a compensable rating, the evidence would need to show her right CTS resulted in, at least, mild incomplete paralysis. The Board finds the evidence is in relative equipoise regarding whether the Veteran's right carpal tunnel syndrome manifested in mild incomplete paralysis before May 6, 2013. The evidence that weighs in favor of a compensable rating is the reported symptoms of numbness, pain, tingling, and pinprick sensations. Additionally, the Veteran's disability led to functional impairment including affecting her ability to perform ADLs, such as doing chores and shopping, and increased pain at her job. Moreover, objective evidence during this period on appeal continued to show positive Tinel's sign in the right upper extremity. This is a sign indicating a tingling sensation at the end of a limb when percussion is made over the site of a divided nerve. Dorland's Illustrated Medical Dictionary 1741 (31st ed. 2007). Also, her pain was so severe that an increase in her gabapentin medication was made and it resulted in reduced range of motion leading to the need for a wrist brace. On the other hand, the evidence weighing against the claim is that the Veteran's right upper extremity was normal at both VA examinations during the period on appeal, in November 2008 and March 2010. More specifically, the findings of an April 2010 electrodiagnostic assessment found that there was no evidence of median nerve entrapment at the wrist level. In spite of the Veteran's report that she quit her job due to her wrist pain, VA medical records indicate she reported during a September 2009 mental health treatment that she quit her job due to a fear of possibly having lupus. The Veteran feared she had lupus, and, reportedly, stopped taking her medication. Thus, the Board finds her assertion of complete occupational impairment due solely to her right wrist disability is not credible, and therefore, not probative as to the severity of her right CTS. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing credibility, VA may consider interest, bias, inconsistent statements, and consistency with other evidence of record). Yet based on the foregoing, and balancing the inconsistent evidence, the Board finds that the Veteran's right CTS manifested in mild incomplete paralysis during the period on appeal as there is both subjective and objective evidence that weighs in favor of a compensable rating. With this evidentiary background, the Board cannot find that a preponderance of the evidence is against this claim. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant a rating of 10 percent for mild incomplete paralysis for the Veteran's right CTS for the period prior to May 6, 2013. As symptoms were reported throughout this period, the 10 percent rating is effective for the entire period, and staging is not warranted. However, the Board finds that a rating for moderate severity is not warranted. Notably, the results of her April 2010 electrodiagnostic were interpreted as indicating there was no electrodiagnostic evidence of a carpal tunnel disorder. This evidence appears to be consistent with the Veteran's abandonment of her appeal regarding a rating higher than 10 percent for the period after May 6, 2013. While the Veteran submitted a subsequent private October 2010 letter describing her symptoms, the letter did not indicate the results from her April 2010 electrodiagnostic assessment were reviewed. Nor did it indicate that an electrodiagnostic test, or something similar, had been done to suggest the Veteran's symptoms in her right upper extremity raised to the level of moderate incomplete paralysis. For these reasons, the VA examiner's interpretation of the April 2010 is more probative. Accordingly, the Board finds that a 10 percent rating, but no higher, is warranted for the period on appeal. LLOYD MASON CRAMP Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.