Citation Nr: 21077201 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-21 868A DATE: December 28, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for left carpal tunnel syndrome is denied. 2. Entitlement to a compensable rating for hypertension is denied. REMANDED 3. Entitlement to service connection for epilepsy, to include as secondary to service-connected posttraumatic stress disorder PTSD with anxiety and sleep impairment (PTSD), is remanded. 4. Entitlement to service connection for a neurocognitive disorder, to include as secondary to a seizure disorder, is remanded. 5. Entitlement to service connection for chronic pain syndrome, to include as secondary to a service-connected disability, is remand. 6. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to March 23, 2016 is remanded. FINDINGS OF FACT 1. The Veteran's left carpal tunnel syndrome is not shown to have been manifested by more than mild incomplete paralysis of the median nerve. 2. The Veteran's hypertension is not shown to have been manifested by diastolic pressures predominantly 100 or more, or systolic pressures predominantly 160 or more; or to have required continuous medication for control with a history of diastolic pressure predominantly 100. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for left carpal tunnel syndrome is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8515. 2. A compensable rating for hypertension is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.104, Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1989 to July 2010. These matters are before the Board on appeal from Department of Veterans Affairs (VA) rating decisions issued in December 2011 (which granted service connection for hypertension, rated 0 percent, and for left carpal tunnel syndrome, rated 10 percent, each effective August 1, 2010) and May 2016 (which denied service connection for a neurocognitive disorder, chronic pain syndrome and epilepsy, and entitlement to a TDIU rating). In July 2014, a videoconference hearing was held before the undersigned regarding the matters of the ratings for left carpal tunnel syndrome and hypertension. Because of problems with the electronic recording system, a transcript of the hearing could not be created. The Veteran was so advised, offered the Veteran opportunity for another hearing before the Board, and afforded 30 days to respond; he did not respond, and it is assumed that he does not desire another hearing. In April 2015, the appeals seeking increased ratings for left carpal tunnel syndrome and hypertension were remanded for additional development. The appeals of the two rating decisions on appeal have been merged in the interim. Increased Rating Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required 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 the veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 10 percent for left carpal tunnel syndrome is denied. April 2011 nerve conduction studies showed electrophysiologic evidence consistent with bilateral median neuropathy across the wrist (i.e., carpal tunnel syndrome), moderate on the right and mild on the left. Based on this evidence, a December 2011 rating decision granted service connection for left carpal tunnel syndrome, rated 10 percent, effective August 1, 2010. On July 2013 VA examination, the Veteran reported having had left carpal tunnel surgery in May 2012. He reported no significant problems with his left hand; he still got some tingling in the fingertips, though not as often as prior to surgery. He reported a limitation of 15 minutes using a keyboard due to the condition of his hands. His left upper extremity symptoms included mild intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing and reflex testing were normal, and there was no muscle atrophy. Sensory testing was normal, with diminished sensation noted in the left index finger. There were no trophic changes attributable to left carpal tunnel syndrome. Mild incomplete paralysis of the left median nerve was noted. The Veteran reported occasional use of braces for bilateral carpal tunnel syndrome. The examiner opined that the left carpal tunnel syndrome impacted the Veteran's ability to work due to diminished ability to type for a prolonged period. On April 2015 VA examination, the Veteran's symptoms attributable to left carpal tunnel syndrome included mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflexes were hypoactive (1+). Sensory testing was decreased at the left hand/fingers (C6-8). There were no trophic changes attributable to peripheral neuropathy. Mild incomplete paralysis of the left median nerve was indicated. The Veteran did not use any assistive devices. VA and private treatment records show symptoms essentially similar to those noted on the VA examinations described above. A December 2013 rating decision granted a temporary total rating convalescence following left carpal tunnel syndrome surgery, effective May 16, 2012 to July 1, 2012, and then continued the 10 percent rating. [The period of temporary total rating is not before the Board.] The Veteran's service-connected left carpal tunnel syndrome is rated 10 percent under 38 C.F.R. § 4.124a, Code 8515, for disability of the median nerve. Under Code 8515, a 10 percent rating is warranted for incomplete paralysis of the median nerve which is mild. For the nondominant hand, a 20 percent rating is warranted for moderate incomplete paralysis of the median nerve, and a 40 percent rating is warranted for severe incomplete paralysis of the median nerve. A 60 percent rating is warranted for complete paralysis of the median nerve. The Veteran is right hand dominant. As explained under the Schedule of ratings for diseases of the peripheral nerves, "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate, degree. The reports of the VA examinations and the treatment records, overall, provide evidence against the Veteran's claim, as they do not show impairment greater than mild incomplete paralysis of the median nerve, so as to warrant a rating in excess of 10 percent. Motor testing, muscle strength, and reflexes have consistently been normal or at most mildly impaired. The Board notes the lay statements submitted by the Veteran in support of this claim. The symptoms described do not reflect more than mild incomplete paralysis of the median nerve, and do not meet the criteria for a higher rating. In summary, it is not shown that the Veteran's left carpal tunnel syndrome has at any time under consideration been manifested by impairment greater than mild incomplete paralysis of the median nerve. A rating in excess of 10 percent is not warranted. 2. Entitlement to a compensable rating for hypertension is denied. On April 2010 VA pre-discharge general medical examination, the Veteran reported no hypertension symptoms. He reported that when he experienced anxiety attacks, his blood pressure became transiently elevated. He was not receiving treatment. Blood pressure readings were 120/80, 120/80, and 120/78. He reported that he had no functional impairment due to hypertension. On May 2010 treatment, blood pressure readings were 110/80, 120/80, 130/80, 130/86, 138/88, and 130/90; the Veteran not currently on prescribed medication for hypertension. On December 2010 VA treatment, his blood pressure was 138/90. On April 2011 VA treatment, his blood pressure was 113/75; lisinopril was prescribed. On August 2011 VA treatment, his blood pressure was 108/78. Based on this evidence, a December 2011 rating decision granted service connection for hypertension, rated 0 percent, effective August 1, 2010. On January 2012 VA treatment, the Veteran's blood pressure was 123/86. On July 2013 VA examination, the Veteran was noted to be taking lisinopril for hypertension, daily, with no side effects. He did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings were noted to be 117/87 in July 2012, 96/60 in April 2013, and 100/72 on current examination. The examiner opined that the hypertension did not impact the Veteran's ability to work. On April 2014 VA treatment, the Veteran's blood pressure was 99/74. On April 2015 VA examination, the Veteran's treatment plan for hypertension included taking continuous lisinopril, daily. He did not have a history of a diastolic blood pressure predominantly 100 or more. His blood pressure was 122/82. He had no other pertinent signs or symptoms related to hypertension. The examiner opined that the Veteran's hypertension did not impact his ability to work. On July 2016 VA treatment, the Veteran's blood pressure was 108/73. On October 2016 VA treatment, his blood pressure reading was 137/92. Hypertension is rated under Code 7101, which provides for a 10 percent rating if diastolic pressures are predominantly 100 or more, or systolic pressures are predominantly 160 or more, or as a minimum evaluation where there is a history of diastolic pressures predominantly 100 in an individual who requires continuous medication for control. A 20 percent rating is warranted if diastolic pressures are predominantly 110 or more, or; systolic pressures are predominantly 200 or more. A 40 percent rating is warranted if diastolic pressures are predominantly 120 or more. A 60 percent rating is warranted if diastolic pressures are predominantly 130 or more. 38 C.F.R. § 4.104. In every instance where the Schedule does not provide a 0 percent evaluation for a Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The record does not show any diastolic pressures of 100 or above, and the Veteran does not have a history of a diastolic blood pressure elevation to predominantly 100 or more (as evidenced by the historic blood pressure readings noted above); he has not alleged (or pointed to outstanding clinical data showing) otherwise. The record also does not show any systolic pressures of 160 or higher, much less that systolic pressures were predominantly so. The schedular criteria for a 10 percent rating for hypertension are not met, and such rating is not warranted. See 38 C.F.R. § 4.31. The preponderance of the evidence is against this claim; therefore, the appeal in this matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for epilepsy, to include as secondary to service-connected PTSD with anxiety and sleep impairment and/or cervical spine disability, is remanded. The Veteran contends that his current epilepsy/seizure disorder is secondary to his service-connected PTSD and/or his cervical spine disability. He has established service connection for cervical spine degenerative disc disease status post microdiscectomies and fusion with scars, and for PTSD with anxiety and sleep impairment. The Veteran's representative contends that the medical opinion evidence in the record is inadequate regarding whether the Veteran's seizures are caused or aggravated by his service-connected PTSD. The representative cited the April 2016 VA examination, when it was noted that non-epileptic seizures are not caused by abnormal brain activity but can be a psychological condition such as PTSD, and that seizures are a maladaptive coping strategy to handle stress in which psychologic conflicts are translated into a physical symptom, i.e., seizure-like activity. The examiner then concluded based on the record that the evidence does not show that the Veteran's seizures were provoked by a stressful event such as a flashback. The representative contends that the examiner did not explain why the seizures could not be caused or aggravated by PTSD, or ask the Veteran about how his PTSD symptoms coincide with his seizures, before concluding that there is no nexus without further explanation of rationale. The Board agrees that the opinions of record are inadequate for rating purposes. An addendum advisory medical opinion is needed, because a fully informed decision on this issue cannot be made based on the record as it stands. A remand for a fully adequate medical advisory opinion is necessary. 38 C.F.R. § 19.9(a). 2. Entitlement to service connection for a neurocognitive disorder, to include as secondary to seizure disorder, is remanded. The Veteran contends that his neurocognitive disorder was caused or aggravated by his seizure disorder. This matter is inextricably intertwined with the service connection claim for epilepsy/seizure disorder (and consideration must be deferred pending resolution of that claim). 3. Entitlement to service connection for chronic pain syndrome, to include as due to a service-connected disability, is remanded. The record shows, and it is not in dispute that the Veteran has a diagnosis of chronic pain syndrome, so acknowledged by VA. He Veteran contends that his chronic pain syndrome is etiologically related to his service or/and is secondary to his service-connected disabilities. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. He has established service connection for PTSD with anxiety and sleep impairment; carpal tunnel syndrome with C7 radiculopathy of the right upper extremity status post carpal tunnel release; cervical spine degenerative disc disease status post microdiscectomies and fusion with scars; temporomandibular joint disorder and bruxism with chronic headaches; thoracolumbar strain and lumbar spondylosis; left knee osteoarthritis and patellofemoral pain syndrome; left ankle tendonitis; right ankle tendonitis; gastroesophageal reflux disease; left carpal tunnel syndrome; macular hole in the left eye status post blunt trauma; sinusitis; hypertension; and surgical scars. In a December 2016 VA advisory medical opinion based on record review, the provider stated that the Veteran's medical history is so complex that it would be impossible to specifically or clearly state his chronic pain syndrome is directly due to his PTSD with anxiety and sleep impairment. The provider opined that the Veteran has so many medical and mental health comorbidities that are inextricably intertwined that it is not possible to separate them out and place blame on PTSD as specifically causing a chronic pain syndrome. The provider opined that in order to be completely objective, one must include all other etiologic source possibilities (to include a mentioned family history of seizures and physical disabilities, both service-connected and nonservice-connected), and not doing so injects bias into any examination report. The provider opined that, with the complex medical and mental health comorbidities the Veteran has, it is impossible to separate them out. The Board finds that the opinions of record are inadequate for rating purposes. The December 2016 VA opinion-provider opined that it would not be possible to separate out the Veteran's many medical/mental health comorbidities to determine that the Veteran's chronic pain syndrome is secondary solely to his PTSD. The provider did not opine whether the Veteran's chronic pain syndrome is caused or aggravated by a combination of his PTSD and his various other service-connected disabilities (i.e., co-morbidities which in combination would not require "sorting out", in which case secondary service connection would be warranted. An addendum advisory medical opinion is needed, because a fully informed decision on this issue cannot be made based on the record as it stands. A remand for a fully adequate medical advisory opinion is necessary. 38 C.F.R. § 19.9(a). 4. Entitlement to a TDIU rating prior to March 23, 2016 is remanded. The Veteran contends that he is unable to maintain substantially gainful employment due in part to his seizure disorder, neurocognitive disorder, and chronic pain syndrome. This matter is inextricably intertwined with the service connection claims that are remanded (and consideration must be deferred pending resolution of those claims). The matters are REMANDED for the following: 1. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion addressing whether his epilepsy/seizure disorder was at least as likely as not (a 50% or better probability) caused or aggravated by (aggravation must be specifically addressed) his service-connected PTSD and/or cervical spine disability. If the service-connected disabilities are found to not have caused, but to have aggravated, the Veteran's epilepsy/seizure disorder, identify (to the extent possible) the degree of seizure disorder (symptoms and functional impairment) due to such aggravation. [An examination of the Veteran is not necessary unless the consulting clinician deems otherwise.] The consulting clinician must include complete rationale with the opinion. If the opinion is that the seizure disorder was not caused or aggravated by the service-connected PTSD and/or cervical spine disability, identify the etiology for the seizure disorder that is considered to be more likely; some discussion of generally known etiologies for the claimed seizure disorder would be helpful. The rationale should include citation to supporting clinical data, and medical principles. If an opinion requested cannot be given without resort to speculation, the consulting provider must so state, and explain why resort to mere speculation is required. 2. Arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion addressing whether his chronic pain syndrome was at least as likely as not (a 50% or better probability) caused or aggravated by (aggravation must be specifically addressed) his service-connected disabilities, to specifically include any combination thereof. If his service-connected disabilities are found to not have caused, but to have aggravated, his chronic pain syndrome, identify (to the extent possible) the degree of the chronic pain syndrome (symptoms and functional impairment) that is due to such aggravation. [An examination of the Veteran is not necessary unless the consulting clinician deems otherwise.] If the opinion is that the chronic pain syndrome was not caused or aggravated by the Veteran's service-connected disabilities (to include in combination), identify the etiology for the chronic pain syndrome that is considered to be more likely; some discussion of generally known etiologies for the claimed chronic pain syndrome would be helpful. The rationale should include citation to supporting clinical data, and medical principles. If an opinion requested cannot be given without resort to speculation, the consulting provider must so state, and explain why resort to mere speculation is required. 3. Then, review the expanded record and readjudicate the claims for service connection for a neurocognitive disorder and for a TDIU rating, considering the determinations made on the claims seeking service connection for epilepsy/seizure disorder and chronic pain syndrome. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.