Citation Nr: 21022056 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-13 545 DATE: April 14, 2021 ORDER Entitlement to service connection for carpal tunnel syndrome (CTS) of the left hand and wrist is granted. A higher 10 percent rating, though no greater, is granted for residuals of right-hand injuries with deformity and arthritis. Entitlement to a rating in excess of 30 percent for CTS of the right hand and wrist is denied. FINDINGS OF FACT 1. It is as likely as not the already determined to be service-connected CTS of the Veteran’s right hand and wrist caused or aggravates the CTS of his left hand and wrist. 2. He is right-handed and, for the entire appeal period, the residuals of his right-hand injuries with deformity and arthritis have included painful motion resulting in functional impairment (e.g., decreased grip strength). 3. His right hand and wrist CTS causes what amounts to “moderate” incomplete paralysis of the affected nerve; “severe” incomplete paralysis is not shown. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for left hand and wrist CTS since secondary to the right hand and wrist CTS. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria also are met for entitlement to a higher 10 percent rating, though no greater, for the entire appeal period for the residuals of the right-hand injuries with deformity and arthritis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5230-5010. 3. But the criteria are not met for entitlement to a rating greater than 30 percent for the right hand and wrist CTS. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to January 1998. This appeal to the Board of Veterans’ Appeals (Board) is from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Historically, the Veteran initially had a 10 percent rating from January 8, 1998 to May 14, 2001, for residuals of right-hand injuries with deformity and arthritis. He then had a higher 40 percent rating as of May 14, 2001. In November 2011, he requested an increase in the rating for this service-connected disability. An August 2012 rating decision continued his 40 percent rating; however, the RO noted that, since there was likelihood of improvement (based on the results of a July 2012 VA examination), the rating was not considered permanent and subject to a future review examination. He submitted a Notice of Disagreement (NOD) in March 2013. After considering the results of a June 2014 VA examination, the RO issued another rating decision in January 2016 proposing to reduce the rating for this service-connected disability (which, at the time, also included CTS) from 40 to 10 percent. The Veteran since has had another VA examination in June 2017, and the RO obtained an addendum opinion in January 2018, after which the RO issued a rating decision in June 2018 reducing the rating for the residuals of the right hand injuries with deformity and arthritis from 40 to 0 percent (noncompensable) prospectively effective as of October 1, 2018. However, although that June 2018 rating decision that has been appealed assigned a lower rating for the residuals of the right hand injuries with deformity and arthritis, it also parceled out the neurologic impairment owing to the right hand and wrist CTS, specifically, and rated that other impairment separately as 30-percent disabling also prospectively effective as of October 1, 2018. Prior to that rating decision, the Veteran’s combined rating – that is, when considering all his service-connected disabilities, was 80 percent. See September 2017 Codesheet. Following that June 2018 rating decision, the combined rating remained at 80 percent, despite that change in the way his right-hand and wrist disability was rated. See June 2018 Codesheet. Accordingly, the rating decision on appeal did not result in a reduction or discontinuation of compensation payments, and the regulatory provisions pertaining to rating reductions resultantly do not apply. Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Peake, 22 Vet. App. 202, 2008-2009 (2008), aff'd sub nom Reizenstein v. Shinseki, 5.3d 1331 (Fed. Cir. 2009); See also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). 1. Entitlement to service connection for left hand and wrist CTS Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also is permissible on a secondary basis for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).   When there is an approximate balance of positive and negative 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. The Veteran attributes his left-hand and wrist CTS to his duties and responsibilities in service. The evidence of record establishes the Veteran has a current diagnosis of left-hand and wrist CTS. See August 2020 VA examination. Consequently, resolution of the appeal of this claim turns, instead, on whether there also is the required attribution of this disability to his military service – either directly, such as to the duties and responsibilities in service he cites as the source or cause of this condition, or alternatively because it is secondary to (again, meaning caused/aggravated by) the CTS affecting his contralateral right wrist and hand that already has been determined to be a service-connected disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). Regarding the claimed direct correlation to his service, the Veteran’s service treatment records (STRs) are unremarkable for any complaints, treatment, or diagnosis of left hand and wrist CTS, but that is not fatal to his claim. See 38 C.F.R. § 3.303(d). On November 2019 VA hand examination, the examiner opined that the Veteran’s left-hand and wrist CTS is less likely than not due to his service. This examiner noted that a review of the record shows the Veteran was diagnosed with CTS of this hand and wrist in July 2001, so not until after conclusion of his service. She also noted that his STRs, however, do not show complaints or a diagnosis of any peripheral neuropathy, including of CTS especially. On more recent July 2020 VA hand examination, the examiner confirmed a current diagnosis of left-hand and wrist CTS. But also, notably, this additional examiner indicated the Veteran’s left hand and wrist CTS, status-post surgery, is a progression of his service-connected right hand and wrist CTS. Certainly, then, when resolving all reasonable doubt in the Veteran's favor as required by 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, the Board finds that the evidence shows that his left hand and wrist CTS was caused or is aggravated, at least to some extent, by his service-connected right hand and wrist CTS. And the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that any incremental increase in disability owing to aggravation of a condition by a service-connected disability is deserving of service connection, regardless of whether the worsening is permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirements for establishing secondary service connection thus are met; service connection for the left hand and wrist CTS consequently is warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule), which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation already has been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings nonetheless may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.   2. A higher 10 percent rating, though no greater, is granted for the residuals of the right-hand injuries with deformity and arthritis This disability has been rated as 0-percent disabling (noncompensable) effectively since October 1, 2018 under hyphenated Diagnostic Code 5230-5010. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. Diagnostic Code 5010 concerns arthritis due to trauma, i.e., post-traumatic arthritis and instructs to rate it as degenerative arthritis (hypertrophic or osteoarthritis) under DC 5003. And, according to DC 5003, degenerative arthritis established by X-ray findings, in turn, will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Diagnostic Codes 5216 to 5227 address ratings for ankylosis of single or multiple digits of the hand and Diagnostic Codes 5228 to 5230 address ratings for limitation of motion of single or multiple digits of the hand. According to DC 5230, any limitation of motion of the ring or little finger, regardless of whether of the major or minor hand, is rated as 0-percent disabling (noncompensable). According to DC 5229, limitation of motion of the index or long finger is assigned a 10 percent rating with a gap of one inch (2.5 centimeters) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. A 0 percent (noncompensable) rating is assigned with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension is limited by no more than 30 degrees. Turning now to the relevant evidence in this case at hand, a November 2001 rating decision increased the rating for the Veteran's right-hand injuries with deformity and arthritis from 10 to 40 percent as of May 14, 2001. That rating decision became final and binding on him when not appealed. In November 2011, the Veteran filed this claim at issue for an increase in the rating for this service-connected disability. But, as explained, the rating for this disability conversely since has been decreased to 0 percent as of October 1, 2018. In an intervening December 2013 statement, the Veteran reported he had “griffin’s claw” resulting from his broken 4th and 5th right metacarpals. He reported consequent loss of strength in his right hand and difficulty gripping. On July 2012 VA hand examination, the diagnosis was status post right-hand injury with deformity and arthritis. It was noted that the Veteran’s dominant hand is his right hand. He reported flare-ups described as trouble gripping, holding, lifting and carrying items, as well as difficulty conducting chorus and writing. On examination, there was limitation of motion or evidence of painful motion in the right ring finger and right little finger. He had a gap of less than one inch between the fingertip and the proximal transverse crease of the palm. There was no gap between the thumb pad and the fingers. The examiner found that the Veteran had normal muscle strength, no muscle atrophy, and no ankylosis. There was deformity of the right ring and little fingers. On July 2017 VA examination, the Veteran reported functional loss or impairment in his right hand, noting difficulty lifting heavy objects, reduced grip, and trouble writing. His range of motion in his right hand was abnormal or outside of range. His index finger had extension to 0 degrees, flexion of metacarpal phalangeal (MCP) to 80 degrees, proximate interphalangeal (PIP) to 80 degrees and distal interphalangeal (DIP) to 70 degrees. The longer finger extension was to 0 degrees, flexion MCP was to 80 degrees, PIP 80 degrees and DIP to 70 degrees. The ring finger extension was to 0 degrees, flexion of the MCP was to 50 degrees, PIP to 80 degrees and DIP to 70 degrees. The little finger extension was to 0 degrees, flexion MCP was to 40 degrees, PIP was to 80 degrees and DIP was to 70 degrees, the Veteran’s thumb range of motion measurements showed extension to 0 degrees, MCP to 90 degrees and IP to 90 degrees. There was no gap between the pad of the thumb and the fingers, there was no gap between the finger and the proximal traverse crease of the hand on maximal finger flexion. There was pain on finger flexion, pain with use of the hand and localized tenderness or pain on palpation of right 4th and 5th metacarpals. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after three repetitions. In January 2018, the Veteran testified at a Decision Review Officer (DRO) hearing. He reported worsening pain in all the fingers on his right hand, especially at the end of the day. He also testified that he has reduced strength in his right hand. In a January 2018 addendum opinion, the July 2017 VA examiner explained the Veteran’s 4th and 5th fingers of his right hand have pain and the other fingers have limited flexion due to pulling of the 4th and 5th finger tendons, affecting the flexion of the other fingers; therefore, his right hand grip strength is weaker. On November 2019 VA hand examination, which the Veteran had following the Board’s December 2018 remand of this claim, the diagnoses of right-hand degenerative arthritis and fractures of the right 4th and 5th metacarpals were confirmed. The Veteran described functional loss as weakness in the area of the 4th and 5th metacarpals. Range of motion of the right hand was normal. There was no gap between the pad of the thumb and the fingers, there was no gap between the finger and the proximal traverse crease of the hand on maximal finger flexion and no pain on examination. He was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion loss after three repetitions. On even more recent August 2020 VA hand examination, the Veteran reported functional loss or functional impairment when gripping. His range of motion in his right hand was abnormal or outside of range. His index finger had extension to 0 degrees, flexion of MCP to 90 degrees, PIP to 60 degrees and DIP from 50 to 70 degrees. The longer finger extension was to 0 degrees, flexion MCP was to 90 degrees, PIP 100 degrees and DIP to 70 degrees. The ring finger extension was to 0 degrees, flexion of the MCP was to 90 degrees, PIP to 100 degrees and DIP to 70 degrees. The little finger extension was to 0 degrees, flexion MCP was to 90 degrees, PIP was to 100 degrees and DIP was to 70 degrees, the Veteran’s thumb range of motion measurements showed extension to 0 degrees, MCP to 100 degrees and IP to 90 degrees. There was mild localized tenderness or pain on palpation of right 4th and 5th metacarpals. When considering this abundance of evidence, the Board finds that a higher 10 percent, though no greater, is warranted. The Veteran has indicated during his several VA compensation examinations that he has flare ups of his joint symptoms and consequent functional loss. The intent of the Rating Schedule is to “recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. So, here, given that there is evidence of right-hand finger pain causing at least some functional impairment, such a reduction in grip strength, the Board finds that a higher 10 percent rating under 38 C.F.R. § 4.59 is warranted. See also 38 C.F.R. § 4.71a, DC 5003. Although the Board acknowledges the limitation of motion of the fingers on the Veteran's right hand, including especially in his 4th and 5th fingers, it is not commensurate with a compensable evaluation according to DC 5230. Therefore, an assigned evaluation under Code 5010 (by way of Code 5003) is more favorable to him than evaluation under Code 5230. The Veteran also has not had a gap of one inch (2.5 cm.) or more between the fingertip proximal transverse crease of his palm or extension of his fingers limited by more than 30 degrees to warrant assigning a higher rating under Code 5229. As the Veteran Court (CAVC) has explained, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. To constitute functional loss, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). Consider, as well, that the Court went on to explain in Mitchell that the evaluation of painful motion as limited motion only applies when, as here, limitation of motion is 0 percent disabling (i.e., noncompensable) under the applicable DC. Although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. Further, a separate rating is not required for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). As such, at 10 percent, the Veteran will have the maximum permissible rating under these specific circumstances and given his current disability symptoms and consequent impairment. Lastly, the Board additionally has considered ratings under Diagnostic Codes 5218, 5222, 5225, 5226, and 5227, however, ankylosis has not been shown during the appeal period to warrant rating the disability under these other Codes. 3. Entitlement to a rating in excess of 30 percent for right hand and wrist CTS is denied. This service-connected disability is rated under 38 C.F.R. § 4.124a, DC 8515. The Veteran’s right-hand is his dominant hand and, thus, considered his "major" hand. CTS occurs when the median nerve, which runs from the forearm into the palm of the hand, becomes pressed or squeezed at the wrist. See CTS Fact Sheet, National Institute of Neurological Disorders and Stroke, https://www.ninds.nih.gov/disorders/patient-caregiver-education/fact-sheets/carpal-tunnel-syndrome-fact-sheet. Thus, CTS is rated as a disease of the peripheral nerves. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8515. Under these criteria, mild incomplete paralysis is rated as 10-percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30-percent disabling for the major extremity and as 20-percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50-percent disabling for the major extremity and as 40-percent disabling for the minor extremity. For complete paralysis, meaning 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, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, the major extremity is rated at 70 percent and the minor extremity is rated at 60 percent. 38 C.F.R. § 4.124a. 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. These descriptive terms "mild," "moderate," "moderately severe" and "severe" are not more specifically defined in the Rating Schedule. 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. Turning now to the relevant evidence of record, the Veteran was examined by VA in July 2017. The examiner diagnosed right hand peripheral neuropathy. The Veteran reported mild intermittent pain and moderate dysesthesias and numbness of his right upper extremity. Muscle strength testing revealed active movement against some resistance (4/5) for right wrist flexion and grip. There was muscle atrophy, of the thenar eminence. On physical examination, the examiner observed the Veteran had positive Tinel's and Phalen’s signs. The examiner indicated the Veteran had what amounted to moderate peripheral neuropathy owing to the CTS. On more recent November 2019 VA examination, the diagnosis was right hand CTS status post carpal tunnel release resolved without residuals. The Veteran reported mild paresthesias and/or dysesthesias of his right upper extremity. On examination, muscle strength, reflexes and sensory testing were normal. The Veteran did not have muscle atrophy or trophic changes. The examiner determined the Veteran had mild incomplete paralysis of his median nerve. Most recently, the Veteran was afforded a VA peripheral nerves examination in August 2020. He reported mild paresthesias and/or dysesthesias of his right upper extremity. On examination, muscle strength was normal in elbow flexion and extension, and in wrist flexion and extension, and there was active movement against some resistance (4/5) for grip. Reflexes and sensory testing were normal. The Veteran did not have muscle atrophy or trophic changes. The examiner determined the Veteran had mild incomplete paralysis of his median nerve. In August 2020, VA requested a medical opinion regarding the conflicting medical evidence of record. The examiner confirmed a current diagnosis of right- hand CTS. He stated that CTS “symptoms are not always continuous but varies (sic) depending if patient was working a lot and aggravated his carpal”. Based on the examination findings, the Board concludes the evidence indicates the Veteran's right hand and wrist CTS is appropriately rated at the currently assigned 30-percent level. The evidence does not indicate that his right CTS is severe, as opposed to moderate or even relatively mild. Although the June 2017 examiners’ assessment of the Veteran’s level of impairment (i.e. moderate and mild) is not controlling, the Board is persuaded that it is in this case an appropriate descriptor of his overall neurological loss, taking into account the totality of his complaints, together with the objective findings. For example, although he experiences some weakness in his right hand, he still has active movement against some resistance, there is no muscle atrophy, his reflexes are normal, he still has sensation in his fingers and hand, and there are no trophic changes.   As such, the preponderance of the evidence is against the assignment of a rating higher than 30 percent for the right hand and wrist CTS. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.