Citation Nr: 21006210 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-24 265 DATE: February 3, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for carpal tunnel disability of the left wrist is denied. Entitlement to 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011, is granted. Entitlement to an initial rating in excess of 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011, is denied. Entitlement to an initial rating in excess of 30 percent for a hysterectomy for the period beginning April 1, 2012, is denied. REMANDED The claim for an initial rating in excess of 10 percent for status post laminectomy, discectomy, foraminectomy of L4-L5 for the period from November 1, 2011, to November 30, 2016, aside from periods in which a temporary 100 percent rating under 38 C.F.R. § 4.30 based on convalescence was in effect, is remanded. The claim for an initial rating in excess of 40 percent for status post laminectomy, discectomy, foraminectomy of L4-L5 for the period beginning December 1, 2016, is remanded. The claim for an initial rating in excess of 10 percent for a left thumb strain is remanded. FINDINGS OF FACT 1. Severe incomplete paralysis of the left (minor) wrist is not demonstrated. 2. Resolving all reasonable doubt in favor of the Veteran, for the period from November 1, 2011, to December 1, 2011, service-connected gynecological disability involved pelvic pain or heavy or irregular bleeding that was not controlled by treatment. 3. For the period from November 1, 2011, to December 1, 2011, and the period beginning April 1, 2012, service connected gynecological disability did not result in a disability cluster manifested as lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for carpal tunnel disability of the left wrist are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8515 (2020). 2. The criteria for an initial rating in excess of 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011, are met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 5110(a); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.116, DCs 7618, 7629 (2020). 3. The criteria for an initial rating in excess of 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011, are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 5110(a); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.116, DCs 7618, 7629 (2020). 4. The criteria for an initial rating in excess of 30 percent for a hysterectomy for the period beginning April 1, 2012, are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 5110(a); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.116, DCs 7618, 7629 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to October 2011, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. In addition to claims for increased ratings for the disabilities addressed herein, the Board of Veterans’ Appeals (Board) in September 2018 remanded claims for service connection for a bladder disability and seborrheic dermatitis of the scalp. As service connection was granted for both disabilities by rating decisions issued in June 2020, the appeal with respect to the claims for service connection for these disabilities has been satisfied. I. General Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 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. § 4.1. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The effective date of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. II. Analysis A. Carpal Tunnel Disability of the Left Wrist 1. Rating Criteria In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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. 38 C.F.R. § 4.124. A note in the Rating Schedule pertaining to “Diseases of the Peripheral Nerves” provides that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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. Under 38 C.F.R. § 4.124a, DC 8515, a 10 percent rating is assigned for mild incomplete paralysis of the minor median nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the minor median nerve; a 40 percent rating is assigned for severe incomplete paralysis of the minor median nerve; and a 60 percent rating is assigned for complete paralysis of the minor median nerve. See 38 C.F.R. § 4.124a, DC 8515.   2. Analysis Service connection for carpal tunnel disability of the left wrist was granted by a January 2013 rating decision at a disability rating of 20 percent under DC 8515 on the basis of moderate incomplete paralysis in the minor extremity (as the Veteran is right handed, the left wrist is in the minor extremity). The Veteran has perfected an appeal with respect to the propriety of this initial rating. Evidence relevant to the assignment of this rating were reports from a May 2012 VA peripheral nerves examination—which noted that the Veteran was right-handed—that diagnosed the Veteran with bilateral carpal tunnel syndrome. Moderate incomplete paralysis was demonstrated in the left median nerve and the examination also showed moderate pain, paresthesias/and or dysesthesias, and numbness in the left upper extremity. The examiner stated that the Veteran’s carpal tunnel syndrome impacted her ability to work to the extent that repetitive wrist motion results in pain and weakness. The September 2018 Board remand found that a VA examination to determine the current severity of the left carpal tunnel disability was necessary, and such was accomplished in September 2019. Mild incomplete paralysis was demonstrated in the left median nerve at that time, and this examination also showed mild pain, paresthesias/and or dysesthesias, and numbness in the left upper extremity. The examiner stated that the Veteran’s carpal tunnel syndrome impacted the Veteran’s ability to work to the extent that she develops tingling and numbness with repetitive motion of over one hour. The VA examination reports set forth above do not reflect the “severe” incomplete paralysis of the left median nerve required for a rating in excess of 20 percent for the service connected left carpal tunnel disability under DC 8515. As a review of the remaining record, to include the private treatment records that have been obtained, does not otherwise reveal evidence of severe incomplete paralysis of the of the left median nerve, a rating in excess of 20 percent for left carpal tunnel disability cannot be assigned.   B. Hysterectomy 1. Rating Criteria Under 38 C.F.R. § 4.116, DC 7618, a 100 percent rating is warranted for three months after the removal of uterus and a 30 percent rating is warranted thereafter. 38 C.F.R. § 4.116, DC 7629 provides for a 10 percent rating for endometriosis when there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. An evaluation of 30 percent is warranted under DC 7629 with pelvic pain or heavy or irregular bleeding not controlled by treatment. An evaluation of 50 percent is warranted under DC 7629 with lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 2. Analysis Service connection for a hysterectomy was granted by the aforementioned January 2013 rating decision at a disability rating of 30 percent under DC 7618 effective from November 2011. The Veteran filed an appeal with respect to the propriety of this initial rating. An April 2014 rating decision revaluated this disability as follows under DCs 7629-7618: 10 percent from November 1, 2011; 100 percent from December 2, 2011; and 30 percent from April 1, 2012. The 100 percent rating was based on the fact of the surgical removal of the uterus that occurred on December 2, 2011, and the 30 percent rating from April 1, 2012, was based on the fact that this was the first day after three months had expired from the December 2, 2011, surgery. Such was in accord with the provisions of 38 C.F.R. § 4.116, DC 7618 as set forth above. Turning first to matter of entitlement to an initial rating in excess of 10 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011, such would have required pain or heavy or irregular bleeding not controlled by treatment so as to warrant a 30 percent rating under DC 7629. The record does not reflect that the Veteran was afforded a VA gynecological examination prior to her December 2, 2011, hysterectomy. However, private obstetrics reports dated in 2011 prior to the December 1, 2011, note that the Veteran’s gynecological symptoms, to include pain, prolapse, and bleeding, were of such severity that a hysterectomy was recommended from as early as August 2011. As such, and resolving all reasonable doubt in this regard in favor of the Veteran, the undersigned finds that there were symptoms of pain or heavy or irregular bleeding not controlled by treatment from the date of the grant of service connection, November 1, 2011, such that a 30 percent rating under DC 7629 is warranted from that date. 38 U.S.C.§ § 5107(b), 5110(a); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7; Gilbert, supra. As for a rating in excess of 30 percent prior to December 2, 2011, or after April 1, 2012 under DC 7629, such would require during either period that the service-connected gynecological disability resulted in a disability cluster manifested by lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Such a complete disability cluster was not shown or described on VA genitourinary examinations conducted in May 2012 or September 2019 or in the private treatment reports of record. In short therefore, a rating in excess of 30 percent for the Veteran’s hysterectomy for the period from November 1, 2011, to December 1, 2011, or the period beginning April 1, 2012, cannot be assigned. C. Final Considerations In making the above rating determinations, the Board observes that it has considered carefully the Veteran’s contentions with respect to the nature of the service-connected disabilities at issue and notes that her lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the Board accepts the Veteran’s testimony with regard to the matters she is competent to address, the Board places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service connected Finally, in making the negative rating determinations above, the Board has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent for carpal tunnel disability of the left wrist; an initial rating in excess of 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011; and an initial rating in excess of 30 percent for a hysterectomy for the period beginning April 1, 2012. As such, an initial rating in excess of 20 percent for carpal tunnel disability of the left wrist; an initial rating in excess of 30 percent for a hysterectomy for the period from November 1, 2011, to December 1, 2011; and an initial rating in excess of 30 percent for a hysterectomy for the period beginning April 1, 2012, may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. REASONS FOR REMAND Prior to the September 2018 Board remand, the service-connected lumbar spine disabitly was characterized as “lumbar strain (severe low back pain L5-S1)” and rated as rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5237. Following this remand, a June 2020 rating decision recharacterized the service-connected lumbar spine disability as “status post laminectomy, discectomy, foraminectomy of L4-L5” and assigned ratings for this disability as follows: 10% from 11/01/2011 (5237) 100% from 05/11/2015 (38 C.F.R. § 4.30) 10% from 10/01/2015 100% from 10/10/2016 (38 C.F.R. § 4.30) 40% from 12/01/2016 In order to assess the propriety of these ratings, the Veteran needs to be afforded a VA examination of the lumbar spine—such as the Veteran has not yet been provided—that contains the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran has also not been provided a VA examination to assess the severity of the Veteran’s left thumb strain that contains the findings required by Correia. As such, the claims for increased ratings for the service-connected lumbar spine and left thumb disabilities must be remanded for examinations of the lumbar spine and left thumb that contain the findings required by Correia. The remand of these claims will also afford the AOJ the opportunity to ensure that the current findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017) are obtained. For the reasons stated above, this case is REMANDED for the following action: Schedule the Veteran for VA examinations of the lumbar spine and left thumb to determine the current nature and severity of her service connected lumbar spine and left thumb disabilities that include the range of motion findings required by Correia and the findings with respect to flare-ups required by Sharp. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.