Citation Nr: 21076371 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-03 702 DATE: December 23, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for right carpal tunnel syndrome (CTS) is granted from June 4, 2012 to October 17, 2012. Entitlement to an initial rating in excess of 30 percent rating for right CTS from December 1, 2012 to September 1, 2015 is denied. Entitlement to an initial rating in excess of 30 percent for right CTS from October 1, 2016 is denied. FINDINGS OF FACT 1. From June 4, 2012 to October 17, 2012, the Veteran's right CTS has been manifested by no more than severe incomplete paralysis of the median nerve. 2. From December 1, 2012 to September 1, 2015, the Veteran's right CTS has been manifested by no more than moderate incomplete paralysis of the median nerve. 3. Since October 1, 2016, the Veteran's right CTS has been manifested by no more than moderate incomplete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but no higher, for right CTS from June 4, 2012 to October 17, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8515. 2. The criteria for entitlement to an initial rating in excess of 30 percent for right CTS from December 1, 2012 to September 1, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8515. 3. The criteria for entitlement to an initial rating in excess of 30 percent for right CTS from October 1, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1968 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim for further development in June 2018 and in a December 2020 decision, as relevant here, granted a 30 percent rating, but no higher, for right CTS from June 4, 2012 to September 1, 2015 and denied a rating in excess of 30 percent from October 1, 2016. The Veteran appealed that decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court, pursuant to a Joint Motion for Partial Remand filed by the parties, found that the Board erred by not providing an adequate statement of reasons or bases for its decision, specifically in that it failed to describe the standard it applied in addressing "moderate" and "severe" symptomatology, as required under Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018). The Court directed the Board to address the benchmark it used to find that Veteran's symptoms were reflective of "moderate incomplete paralysis" as opposed to "severe incomplete paralysis," as required under Johnson, 30 Vet. App. at 255, vacated the December 2020 decision to the extent that it denied an initial rating in excess of 30 percent for right CTS prior to September 1, 2015 and from October 1, 2016, and remanded the appeal to the Board. Increased Ratings 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 represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's right CTS is rated pursuant to DC 8515, which contemplates paralysis of the median nerve. The rating criteria distinguishes between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. As the record establishes that the Veteran's right wrist is dominant, the criteria for rating disabilities of the major extremity are for application. Under DC 8515, pertaining to the major extremity, a 30 percent rating is assigned for moderate incomplete paralysis, a 50 percent rating is assigned for severe incomplete paralysis, and a maximum 70 percent rating is assigned for complete paralysis 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, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. In applying the schedular criteria for rating peripheral nerve disabilities, 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. 38 C.F.R. § 4.124a. Words such as "moderate" and "severe" are not defined in the Rating Schedule. "Moderate" is generally defined as tending toward the mean or average amount, while "severe" is generally defined as of a great degree or serious. Merriam-Webster's Collegiate Dictionary, 798; 1140 (11th ed. 2003). Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Based on the above, "moderate" would correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered disabling to an average/medium degree, and/or involving a larger area in nerve distribution confirmed by examination findings. Additionally, moderate can correspond to 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. Whereas, "severe" would be characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a serious or very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contains signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve. The parties to the JMR took no issue with the Board's finding that right cubital tunnel syndrome is not part of the Veteran's service-connected disability picture. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). 1. Entitlement to an initial 50 percent rating, but no higher, for right CTS is granted from June 4, 2012 to October 17, 2012. From June 4, 2012 to October 17, 2012, a 50 percent is warranted, exclusive of the temporary total rating period, based on objective testing showing severe CTS, in addition to the Veteran's competent and credible reports. The Board notes that the August 2012 VA examination pertains to hand and finger conditions instead of peripheral nerve conditions but acknowledges the Veteran's reports of bilateral hand pain, absent sensation, difficulty with gripping, and inability to open things, and muscle strength testing of the right hand showed slight decrease (4/5) in grip strength. In a September 2012 private treatment record, the Veteran reported increased weakness over the last 6 months and loss of strength. Physical examination showed significant loss of muscle strength in the right upper extremity (4/5 bicep and tricep; 3/5 wrist flexion; 2/5 wrist extension, grip, and inter os), and severe wasting of the intrinsic muscles was noted. On October 17, 2012, the Veteran underwent right carpal tunnel release surgery. The next day, the surgeon indicated that the Veteran did well postoperatively, noting neurologic improvement with normal hand strength, and he was discharged from the hospital on October 18, 2012. The above-noted pre-surgery findings are demonstrative of severe, or serious, incomplete paralysis of the right median nerve, manifested by muscle atrophy and weakness, and requiring surgery, so as to warrant a 50 percent rating for right CTS from the beginning of the appeal period, or June 4, 2012 to October 17, 2012, the beginning of his temporary total rating due to surgery. A higher rating is not available for this period, as the record does not reflect symptoms indicative of complete paralysis. Specifically, while the Veteran evidenced severe atrophy, this is contemplated in the 50 percent rating currently assigned, and there is no indication in the above-cited evidence that any of the numerous other criteria for complete paralysis are met. Critically, the parties to the JMR did not point out any evidence supporting a complete paralysis during this period. See id. 2. Entitlement to an initial rating in excess of 30 percent rating for right CTS from December 1, 2012 to September 1, 2015 is denied. 3. Entitlement to an initial rating in excess of 30 percent for right CTS from October 1, 2016 is denied. For the period from December 1, 2012 to September 1, 2015 and beginning October 1, 2016, the Board finds a rating in excess of 30 percent is not warranted, as contemporaneous examination reports and treatment records do not indicate signs or symptoms of severe, or seriously disabling symptoms of, incomplete paralysis or complete paralysis of the right median nerve. In this regard, during the November 2012 VA examination, when the Veteran was in receipt of a temporary total rating following his surgery, the Veteran did not report any symptoms of right CTS and muscle strength, reflex, and sensory testing were normal in the right upper extremity, with no evidence of atrophy or trophic changes. Moreover, the Veteran himself has endorsed that a 30 percent rating was warranted for moderate symptomology associated with his right wrist and reported that the severity of his wrist had been the same throughout the appeal period. See Board Hearing Transcript at 32-33. The October 2016 VA examination report shows the Veteran endorsed moderate intermittent pain, severe paresthesias and/or dysesthesia, and mild numbness in his right upper extremity. He denied constant pain at that time. At the May 2017 VA examination, the Veteran reported moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesia, and mild numbness. During the July 2019 VA examination, he described right hand pain and stated that his hand and fingers would "freeze up." Each of the VA examiners considered the Veteran's reported symptomatology and found involvement of the right median nerve and characterized the severity as moderate, or medium. See October 2016, May 2017, and July 2019 VA examination reports. Physical examination showed that muscle strength and reflex testing were normal with no evidence of muscle atrophy or trophic changes, but decreased sensation in the right hand/fingers was noted. Id; see also November 2016 and December 2016 private treatment records (noting normal muscle strength in the right upper extremity with sensibility grossly intact through all digits and full range of motion in all digits). These objective findings, coupled with the Veteran's reported symptoms, are reflective of no more than moderate incomplete paralysis, which is consistent with the 30 percent rating for moderate or medium symptomatology, as is currently assigned during these periods. Although the record indicates decreased sensation in the right hand/fingers, the Board finds this symptom alone does not reflect a level of impairment that is so significantly disabling to such an extreme or intense degree that more closely approximates severe, or serious, incomplete paralysis or complete paralysis of the median nerve. While the Veteran reported weakness and loss of strength in his right hand, the Board affords more probative value to the objective evidence showing normal muscle strength with gripping and pinching. See October 2016, May 2017, and July 2019 VA examination reports. In sum, the evidence does not demonstrate or approximate more than moderate or medium symptomology, when considering the predominantly normal objective testing results with the Veteran's reported subjective symptoms. Thus, a rating higher than 30 percent from December 1, 2012 to September 1, 2015 and from October 1, 2016 is not available. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.