Citation Nr: 21009028 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-08 356 DATE: February 18, 2021 ORDER Entitlement to an initial rating of 40 percent, but no higher, for carpal tunnel syndrome (CTS) of the right wrist/hand is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right elbow disability is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, throughout the appeal period, the evidence shows that his right wrist/hand CTS more nearly approximates moderate incomplete paralysis of all radicular groups. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 40 percent, but no higher, for CTS of the right wrist/hand have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8513. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1987 to April 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In September 2018, the Board remanded these matters to the RO for further development. As an initial matter, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 20 percent rating for the Veteran’s right wrist/hand CTS effective July 2, 2012, the date of the Veteran’s claim. The grant of an increased rating during an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board also notes that although the RO implicitly reopened the Veteran’s claim for service connection for a right shoulder disability in the April 2013 rating decision, the Board must determine independently whether reopening is warranted in order to establish that it has jurisdiction over this claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this regard, the AOJ denied the Veteran’s service connection claim for a right shoulder disability in a July 2001 rating decision after the Veteran failed to report to a VA examination and concluded that the evidence did not show a chronic disability subject to service connection. The Veteran did not appeal this decision and new and material evidence was not received during the applicable time period; thus, the July 2001 rating decision became final. See 38 U.S.C. §§ 5108, 7104(b), 7105. However, since the July 2001 rating decision, additional evidence was received in the record including private treatment records, lay testimony, and VA examinations, which were not of record in July 2001 and relate to the unestablished fact of whether the Veteran has a right shoulder disability related to service. As this evidence is new and material, the Veteran’s claim for service connection for a right shoulder disability has been reopened. See 38 C.F.R. § 3.156(a). Entitlement to an initial rating of 40 percent, but no higher, for right wrist/hand CTS The Veteran seeks an initial increased rating for his service-connected right wrist/hand CTS. Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out in 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. In the present case, the Veteran is in receipt of a 20 percent rating for his right wrist/hand CTS from July 2, 2012, under DC 8513, which provides the rating criteria for paralysis of all the radicular groups, and therefore, neuritis and neuralgia of all the radicular groups. Under DC 8513, mild incomplete paralysis of the affected nerves is rated 20 percent disabling for either extremity, moderate incomplete paralysis of the affected nerves is rated 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity, severe incomplete paralysis of the affected nerves is rated 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity, and complete paralysis of the affected nerves is rated 90 percent disabling for the major extremity and 80 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See the note preceding DC 8510. The Board also observes that the words “mild,” “moderate,” and “severe,” as used in the applicable DCs, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. At the outset, the Board notes that the Veteran is right-handed, and thus the criteria for the major side is for application. Turning to the evidence of record, a July 2012 private chiropractor treatment note reflects that the Veteran reported a worsening in his right posterior hand symptoms and described these symptoms as aching, numb, sharp, and intermittent. Palpation of the muscles revealed spasms in the right anterior forearm, right anterior wrist, right posterior wrist, and right posterior forearm. Thereafter, an August 2012 private treatment record indicates the Veteran complained of tingling in his right hand that would sometimes wake him up three to four times at night. Examination showed full strength in his hand flexes bilaterally with no palpable tenderness on palpation of the distal wrist. Tinel and Phalen signs were both negative. He was issued a splint and a prescription for Medrol Dosepak. In September 2012, the Veteran reported that the splint and thyroid medicine were somewhat helpful for his CTS but that they did not completely resolve his symptoms. See September 2012 private treatment record. Physical examination revealed normal muscle strength without gross sensory deficits. In March 2013, the Veteran underwent a peripheral nerves VA examination. At the time of the examination, he reported that he had symptoms with writing and sleeping, awoke with pain and tingling in the right hand, used a right wrist splint at night, and that overuse triggered flare-ups. Specifically, he reported experiencing flare-ups in the form of daily deep pain and tingling, with a severity of 9/10, that radiated to the hand and forearm, and resulted in a 20 percent loss of motion and strength. He also occasionally used a brace during periods of repetitive motion of the right forearm. The examiner noted the Veteran had mild constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing showed 4/5 strength for right grip and right pinch. The Veteran had normal reflexes but decreased sensation testing for light touch on the right inner/outer forearm and hand/fingers. He also had positive Phalen’s testing. The examiner assessed the Veteran with incomplete mild paralysis of both the radial and median nerves. The examiner further found that the Veteran’s disability impacted his ability to work because the Veteran had difficulty typing, picking up objects from his desk, and difficulty with picking up a cup of coffee. The examiner noted, however, that the Veteran did not miss any work due to his condition but, rather, worked around his dysfunction. Subsequent treatment records continued to reflect right wrist/hand CTS symptoms, including numbness, paresthesias, and some motor impairment. For example, a May 2013 VA treatment record reflects that the Veteran reported numbness in his first, second, and third fingers with certain activities such as working on computers and that he would lose his grip when holding objects. He wore a splint with some improvement but reported that his symptoms were worsening. Objective examination revealed no gross neurological deficits while right wrist Tinel and Phalen tests were negative. He was noted to have good hand grip and was assessed with bilateral hand paresthesias. In August 2013, the Veteran again complained of numbness and tingling to both hands. See August 2013 VA treatment record. At that time, objective examination showed that right hand muscles were fine, but he had a positive Tinel test and shaking to his hand at times. An October 2013 VA treatment record also shows that the Veteran’s disability manifested in numbness type pain at night and with activity. Specifically, the Veteran reported intermittent numbness of his right hand, wrist, and forearm and reported that if he did not use his brace during sleep or otherwise wear the brace, he experienced severe hand and forearm numbness. His major complaints/functional impairments involved increased difficulty with right hand symptoms with repetitive work and at night, difficulty with gripping or holding items in his right hand, difficulty with using yard and power tools, and difficulty completing fine motor tasks. On physical examination, his right grip strength was 110 pounds, lateral pinch strength 27 pounds, and palmar pinch 19 pounds. He was assessed with good grip and pinch strength in the bilateral hands and had slight loss of sensation in the bilateral thumbs. Specifically, he had diminished light touch sensation in the bilateral thumbs. He was issued a right large wrist brace. In March 2015, the Veteran reported that he experienced numbness all day and that he was only able to do certain activities for five minutes or less, such as writing, before he experienced complete paralysis of the hand. See March 2015 VA Form 9. Likewise, a September 2017 VA treatment record reflects the Veteran’s reports of numbness in his first, second, and third fingers with certain activities and working on computers. Additionally, during his May 2018 Board hearing, the Veteran testified that he experienced cramping and pain through the wrist and forearm with typing and writing and described extreme pain when trying to make a fist. See May 2018 Board hearing transcript, pp. 7-8. He also explained that his wrist swells on a daily basis and that sometimes when he shakes someone’s hand, he experiences shooting pain up his whole arm, which causes complete pain and paralysis for a few minutes. See id. a pp. 5-10. In July 2019, the Veteran was issued a cock-up splint for his right hand, which could be worn at night and during daily aggravating motions. See July 2019 VA treatment record. The Veteran last underwent a VA examination in September 2019. At the time of the examination, the Veteran reported pain on the right dorsal aspect of his hand, which would also shoot up to the dorsal aspect of his forearm and feel as if it was on fire for three to four minutes. He explained this would result in an inability for him to close his hand or make a fist for about 60 minutes. The examiner noted that the Veteran had mild intermittent pain, mild paresthesia and/or dysesthesias, and mild numbness. On examination, muscle strength, reflex, and sensory testing were normal. Phalen and Tinel testing were positive. The examiner assessed the Veteran with mild incomplete paralysis of both the radial and median nerves. The examiner noted there was no decrease in range of motion of the bilateral hands, fingers, or wrist, and no limitations of motion after repetitive use. However, the examiner also found that the Veteran’s condition impacted his ability to work based upon the Veteran’s reports that he was unable to type or use a computer mouse for prolonged periods of time due to pain, numbness, and tingling of his wrist. The examiner also noted that zero to one week of work time was lost in the last 12 months due to his disability. Given the above evidence, the Board finds that the evidence is in equipoise as to whether the Veteran’s right wrist/hand CTS more closely approximates the criteria for moderate incomplete paralysis of all radicular groups. In this regard, throughout the appeal period, the medical and lay evidence shows that the Veteran’s right wrist/hand CTS resulted in muscle spasms, paresthesia, numbness, tingling, deep pain during flare-ups, and some impairment of motor functions with repetitive activity or prolonged use. The evidence also shows that despite the use of a splint and prescribed steroid (Medrol Dosepak), his symptoms persisted. The Board acknowledges that the VA examiners concluded that the Veteran had mild incomplete paralysis of both the radial and median nerves. However, a review of the VA examination reports and lay statements of record evidences that the Veteran’s disability interfered with his everyday life, including with activities such as writing, typing, and gripping. The evidence also indicates that he experienced flare-ups which increased paresthesia symptoms and pain. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that an initial 40 percent rating, but no higher, for the Veteran’s right wrist/hand CTS is warranted under DC 8513. A rating in excess of 40 percent for the Veteran’s right wrist/hand CTS is not warranted as the evidence does not more nearly approximate “severe” incomplete paralysis of all radicular groups or for any specific impacted nerves. In this regard, both the March 2013 and September 2019 VA examiners characterized the Veteran’s incomplete nerve paralysis as mild while objective physical examinations, noted in treatment records, generally showed normal muscle strength and slight diminished sensations. The Board finds that the VA examinations are probative evidence in this case as they offer detailed specific findings pertinent to the rating criteria and evaluate symptom severity and functional impairment. Thus, with consideration of the Veteran’s lay statements as well as the objective clinical features and evaluations of the Veteran’s disability, a rating in excess of 40 percent is not warranted at any point during the appeal period. The Board notes that the Veteran’s representative has argued that DC 8513 does not address the radial and median nerves and that the Board must discuss whether separate compensable ratings are warranted for the Veteran under both DCs 8514 and 8515. See February 2021 Appellate Brief. As such, the Board has considered whether alternative and/or separate additional ratings may be warranted due to the Veteran’s impairment of his two nerves. Specifically, as discussed above, the evidence shows that the Veteran has incomplete paralysis of the right radial and right median nerves, and if rated independently, can be evaluated under DC 8514 and DC 8515, respectively. However, 38 C.F.R. § 4.124a provides that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, considered in radicular group ratings. See the note following DC 8719. Here, the AOJ appropriately evaluated the Veteran’s right wrist/hand CTS under DC 8513 (all radicular groups) as this DC contemplates multiple nerve injuries affecting the Veteran’s right wrist and hand. Additionally, the Board finds that assigning separate ratings under DC 8514 and DC 8515 for the Veteran’s right wrist/hand CTS would constitute impermissible pyramiding as the Veteran’s injuries to the radial and median nerves all contribute to the same and overlapping functional impairment of the right upper extremity consisting of pain, paresthesias and/or dysesthesias, numbness, or sensory loss. Specifically, as the Veteran’s primary symptoms pertain to pain and diminished sensation of the right wrist and hand, the Veteran’s symptom cluster, anatomical location, and effects of the disabilities overlap and do not constitute separate and distinct manifestations of disabilities warranting separate ratings under DCs 8514 or 8515. The Board notes that VA regulations prohibit evaluation of the same disability or the same or overlapping symptomatology under different DCs (which is called "pyramiding"). 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has also considered whether the Veteran is entitled to a higher or separate rating under any other applicable DC referable to the nerves, including DC 8514 or 8515. However, the medical evidence does not show that any other nerves have been impacted besides the median and radial nerves. Further, the Board does not find that a higher rating is warranted under DC 8514 or DC 8515, if the Veteran was rated under one of these DCs instead of DC 8513. In this regard, the Veteran’s impairment would have to be severe under any of the two DCs to merit a higher rating, and the VA examiners found the impairment of the radial and median nerves to be mild. As such, the assignment of multiple and/or separate DCs in this case is not warranted. Finally, the Board acknowledges that in February 2021 correspondence, the Veteran’s representative generally raised the issue of extraschedular consideration and, as such, the Board has considered whether the Veteran’s right wrist/hand CTS should be rated on an extraschedular basis. See February 2021 Appellate Brief. Extraschedular ratings are assigned in cases where an exceptional or unusual disability picture is presented that renders application of the regular rating schedular standards impractical, due to factors such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that disability picture are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). If the rating criteria reasonably describes a veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule (i.e., the assigned schedular evaluation is adequate), and no referral is required. However, if the schedular criteria do not contemplate a veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). Id. In the present case, the Board finds that the Veteran’s right wrist/hand CTS is not so unusual or exceptional in nature as to render the rating assigned inadequate. In this regard, the Board finds that when comparing the Veteran’s right wrist/hand CTS disability picture with the symptoms contemplated by the Rating Schedule, the Veteran’s symptoms are contemplated by the rating assigned throughout the appeal period. In fact, the Board finds that the criteria for the rating assigned more than reasonably describes the Veteran’s disability level and symptomatology during the appeal period. Specifically, the Veteran’s statements and medical evidence indicate that his CTS symptomatology features motor (grip strength, dexterity, etc.) and sensory (pain, numbness, dysesthesias, etc.) difficulties in his right wrist and hand, which are precisely encompassed by the schedular criteria. Additionally, the effects of pain, including during flare-ups and with prolonged use, have been considered and contemplated in his assigned 40 percent rating under DC 8513. Accordingly, this is not an exceptional circumstance in which referral for extraschedular consideration is required during any portion of the appeal period, to include when considering the combined effects of his right wrist/hand CTS with his other service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Finally, the Veteran has not indicated, nor has the evidence raised, that his service-connected right wrist/hand CTS in conjunction with his other service-connected disabilities render him unable to obtain or maintain substantially gainful employment; thus, the Board will not address this issue of entitlement to a total disability rating for individual unemployability herein. REASONS FOR REMAND Entitlement to service connection for a right shoulder disability and right elbow disability The Veteran’s representative argues that the Veteran has not received adequate VA examinations in connection with his right shoulder and right elbow service connection claims. See February 2021 Appellate Brief. First, he asserts that the March 2013 VA examiner’s negative nexus opinions for direct service connection do not take into account the Veteran’s reports of continuity of symptomatology since service. The Board notes that since the March 2013 VA negative nexus opinions for direct service connection, the Veteran has testified to experiencing continuity of symptomatology for his right elbow and shoulder disabilities, which have also been documented in private medical records and VA examinations. In light of the Veteran’s reports of continuity of symptomatology and the fact that the March 2013 VA examiner did not address these reports, the Board agrees with the Veteran’s representative and finds a remand is warranted for an addendum VA opinion that considers and addresses these lay assertions. See Dalton v. Peake, 21 Vet. App. 23 (2007). Second, the Veteran’s representative contends that the September 2019 VA examiner’s negative nexus opinions for secondary service connection are inadequate because the VA examiner did not provide separate opinions for the causation and aggravation elements of secondary service connection and because by only focusing on the impacted median nerve, the VA examiner did not properly consider whether impairment of the right wrist, including any manifestations of the Veteran’s service-connected right wrist/hand CTS, impacted the Veteran’s right elbow and right shoulder disabilities. See February 2021 Appellate Brief. The Board agrees and finds that, in fact, the September 2019 VA examiner only provided rationale for the causation element of secondary service connection and did not provide any rationale for the aggravation element of secondary service connection for the Veteran’s right shoulder disability. Additionally, the September 2019 VA examiner did not appear to consider the Veteran’s reports, during the examination, of right elbow flare-ups and functional loss in relation to his right wrist use. Finally, in providing negative nexus opinions for both the right elbow and shoulder disabilities, the September 2019 VA examiner did not address the radial nerve involvement with the Veteran’s right wrist/hand CTS. Accordingly, on remand, an addendum opinion should adequately address whether the Veteran’s right shoulder and elbow disabilities were caused or aggravated by his right wrist/hand CTS, with consideration of all the medical and lay evidence of record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. The last VA treatment of record is dated August 2020. 2. Provide the Veteran with another opportunity to identify/and or submit any outstanding records related to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. Then, obtain an addendum opinion from an appropriate medical professional to determine the nature and origin of the Veteran’s right shoulder disability. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder disability (1) had an onset in service, (2) manifested within one year from service, OR (3) is otherwise related to service, to include his documented in-service right shoulder pain, tendonitis, and rotator cuff injury? In providing the above opinion, the VA examiner must DISCUSS the Veteran’s lay statements of record regarding onset of symptoms and continuity of symptomatology since service. Specifically, the Veteran reported right shoulder pain in his March 2000 VA compensation claim and testified at the May 2018 Board hearing that his right shoulder pain started in service and continued after his discharge from service. The examiner should also consider and address as appropriate: (1) The March 1999 service separation Report of Medical Assessment indicating the Veteran intended to seek VA disability for his shoulders and notation that he had bilateral shoulder pain for quite some time now; (2) the August 2006 private treatment record reflecting the Veteran reported a new onset of bilateral shoulder aching and was not sure whether it was due to medication or a new lifting program; (3) the June 2009 private treatment record reflecting that the Veteran was evaluated for right shoulder discomfort after falling from a ladder and landing on his right shoulder; and (4) the July 2018 private treatment note reflecting that the Veteran’s right shoulder degenerative arthritis, with duration of symptoms for 20 years, may relate back to his military work and strenuous type activities while in the Army portion of his service. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder disability is caused OR aggravated by his service-connected right wrist/hand CTS or other service-connected disability? In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected disabilities, including right wrist/hand CTS, did not cause his right shoulder disability, the examiner should still address whether these service-connected disabilities could have worsened his right shoulder disability. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was an increase in disability regardless of permanence, but medically ascertainable. The examiner should provide a complete rationale for all opinions provided. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Obtain an addendum opinion from an appropriate medical professional to determine the nature and origin of the Veteran’s right elbow disability. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner. The examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right elbow disability (1) had an onset in service, (2) manifested within one year from service, OR (3) is otherwise related to service, to include treatment with an elbow brace for a tennis elbow/Dequervain’s/epicondylitis during service? In providing the above opinion, the VA examiner must DISCUSS the Veteran’s lay statements of record regarding onset of symptoms and continuity of symptomatology since service. Specifically, the Veteran testified at the May 2018 Board hearing that his elbow pain started around the same time as his wrist/hand pain in service. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right elbow disability is caused OR aggravated by his service-connected right wrist/hand CTS or other service-connected disability? In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected disabilities, including right wrist/hand CTS, did not cause his right elbow disability, the examiner should still address whether these service-connected disabilities could have worsened his right elbow disability. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was an increase in disability regardless of permanence, but medically ascertainable. In providing the above opinion, the examiner should consider and address as appropriate: (1) the March 2013 VA examination notation that his right elbow condition seems to correlate to his right hand numbness; (2) his May 2018 Board testimony that when he massages around the elbow, it also alleviates the pain in his hand; and (3) the Veteran’s report during the September 2019 VA examination that he experiences right elbow flare-ups and functional loss in relation to the right wrist use The examiner should provide a complete rationale for all opinions provided. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, Associate 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.