Citation Nr: 21025726 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-07 793 DATE: April 28, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for right carpal tunnel syndrome is denied. Entitlement to an increased rating in excess of 20 percent for left hand carpal tunnel syndrome is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s right hand carpal tunnel syndrome has manifested by moderate incomplete paralysis. 2. During the appeal period, the Veteran’s left hand carpal tunnel syndrome has been manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent right hand carpal tunnel syndrome are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8515. 2. The criteria for a rating in excess of 20 percent for left-hand carpal tunnel syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from April 1977 to August 1997. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. These claims were remanded in November 2017 to afford the Veteran a new VA examination, which was accomplished in March 2018. In an August 2019 Board of Veterans' Appeals (Board) decision, the Veteran's claim for an increased rating for these claims were denied. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court granted the parties' June 2020 Joint Motion for Remand (JMR), vacating the Board's August 2019 decision. Increased Rating 1. Entitlement to an increased rating in excess of 30 percent for right carpal tunnel syndrome. 2. Entitlement to an increased rating in excess of 20 percent for left hand carpal tunnel syndrome. The Veteran contends that his bilateral carpal tunnel symptoms are worse than the ratings that are currently assigned. Specifically, the Veteran contends that he is entitled to an increased rating of 40 percent for right hand carpal tunnel syndrome and 30 percent for left hand carpel tunnel syndrome for the entire appellate period. See February 2021 Correspondence. The Veteran filed his claims for increased ratings in February 2010. 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. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court of Appeals for Veterans Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38C.F.R.§4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran’s right carpal tunnel syndrome is currently rated at 30 percent disabling under Diagnostic Code (DC) 8515. Likewise, his left carpal tunnel syndrome is currently rated at 20 percent disabling under DC 8515. DC 8515 provides ratings for both the “minor” and the “major” wrist. In this context “minor” and “major” refer to the dominant or nondominant side. Here, the Veteran’s major hand (dominant) is the right upper extremity, and the minor hand is the left upper extremity. DC 8512, lower radicular group paralysis, provides a 70 percent (60 percent minor) ratings for complete paralysis; all intrinsic muscles of hand, and some or all flexors of wrist and fingers, paralyzed (substantial loss of use of hand). A 50 percent rating (40 percent minor) is warranted for severe incomplete paralysis. A 40 percent rating (30 percent minor) is warranted for moderate incomplete paralysis. A 20 percent rating (20 percent minor) is warranted to mild incomplete paralysis. Id. DC 8515 addresses complete and incomplete paralysis of the median nerve. As relevant, under DC 8515, moderate incomplete paralysis warrants a 30 percent rating for the major wrist, and a 20 percent rating for the minor wrist. Severe incomplete paralysis warrants a 50 percent rating for the major wrist, and a 40 percent rating for the minor wrist. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 70 percent disability rating for the major wrist and a 60 percent rating for the minor wrist. 38C.F.R.§4.124a, DC 8515. The term “incomplete paralysis” used in reference to evaluation of peripheral nerve injuries 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. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38C.F.R.§4.6. It should also be noted that use of terminology such as “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38C.F.R.§§4.2, 4.6. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App.at 54). Analysis The Board finds that, based on the evidence of record, a rating in excess of 30 percent rating for the Veteran’s right carpal tunnel syndrome and a rating in excess of 20 percent rating for his left carpal tunnel syndrome is not warranted at any time during the appeal period. A review of the Veteran’s post service VA and private treatment records during this appeal period reveal bilateral hand complaints, which include pain, decreased sensation, cramping, and complaints of decreased grip strength. A February 2010 private medical opinion found that the Veteran was unable to perform anything more than simple activities of daily living due to his bilateral carpal tunnel syndrome. The private clinician also opined that the Veteran was not able to perform any kind of manual or even light-duty labor due to the severity of his bilateral carpal tunnel disabilities. The opinion does not detail if an examination was performed to reach this conclusion, nor does the opinion detail whether the clinician reviewed the evidence of record in reaching its conclusion. An opinion based on an inaccurate factual background is entitled to no probative value. While the lay statements of record from the Veteran, his family, and friends support the private clinician’s conclusion, the medical evidence of record, including the VA examinations and Veteran-submitted DBQ do not. The medical evidence, as discussed below, finds the Veteran to have moderate bilateral pain and numbness that affected the radial and median nerves. Therefore, the February 2010 private opinion is not supported by other evidence of record and is not awarded probative weight. The Veteran underwent a VA examination in April 2010. The examiner noted that the Veteran had bilateral carpal tunnel syndrome and the Veteran reported he had not worked since 2009 due to his hands and difficulty with bilateral weakness. On examination, the Veteran had decreased grip strength in both hands, with decreased sensation to pinprick, light touch, and decreased vibratory sense following both left and right median nerves. The Veteran underwent a second VA examination in February 2013. The examiner noted the Veteran’s complaints of his symptoms worsening since the last VA examination (“can’t use hands ... cannot lift ... have no [hand] strength”). The examiner also noted the Veteran's symptoms of constant cramping, numbness, and weakness in both hands with decreased strength. The examiner found the Veteran to be right hand dominant. Clinical examination revealed moderate, constant pain bilaterally, but no evidence of intermittent pain, paresthesias and/or dysesthesias. Moderate bilateral numbness was present. Strength testing revealed normal (5/5) muscle strength on bilateral elbow flexion, wrist flexion, and extension, but bilateral active movement with resistance (4/5) on grip and bilateral active movement against gravity (3/5) on pinch. Reflexes were normal (+2), but the sensory examination revealed decreased sensation in bilateral hands/fingers. The examiner found mild incomplete paralysis of the radial and median nerves bilaterally. The examiner also found normal ulnar nerve function bilaterally. The examiner further opined that the Veteran’s disabilities impacted his ability to work due to the Veteran’s report of being unable to use heavy weights, power tools, or maintaining equipment. The Veteran submitted a Disability Benefits Questionnaire (DBQ)from a VA physician in December 2013. The examiner noted the Veteran’s history of bilateral carpal tunnel surgery. The examiner found the Veteran to be right hand dominant. Clinical examination revealed moderate, constant pain in the right upper extremity, and bilateral intermittent pain. The examiner also found paresthesias and/or dysesthesias and numbness in the right upper extremity. Strength testing revealed normal (5/5) muscle strength on bilateral elbow flexion, wrist flexion, and extension, but bilateral active movement with resistance (4/5) on grip and pinch. Reflexes were normal, but the sensory examination revealed decreased sensation in the Veteran’s right hand/fingers. The examiner found normal bilateral radial, ulnar, and median nerve function. The examiner also found that the Veteran’s disabilities impacted his ability to work due to the Veteran’s decreased bilateral grip strength. The examiner further opined that the Veteran was not suitable for repetitive or heavy labor activity due to his disabilities. The Veteran underwent a third VA examination in March 2018. The examiner noted the Veteran’s complaints of his symptoms worsening and that he “can no longer do landscaping.” The examiner found the Veteran to be right hand dominant. Clinical examination revealed moderate bilateral constant pain, moderate bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. Strength testing revealed normal (5/5) muscle strength on bilateral elbow flexion, wrist flexion, and extension, but bilateral active movement with resistance (4/5) on grip and bilateral active movement against gravity (3/5) on pinch. Reflexes were normal (+2), but the sensory examination revealed decreased sensation in bilateral hands/fingers. The examiner also found moderate incomplete paralysis of the radial and median nerves bilaterally and normal ulnar nerve function bilaterally. Furthermore, the examiner found that the Veteran’s service-connected disabilities did not preclude light office work, and that he was still able to drive a motor vehicle, despite his symptomology. There is no evidence of record that the service connected disabilities are productive of a hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. The Board has also considered whether the Veteran could receive a higher rating under other applicable diagnostic codes, including under 38C.F.R.§4.123 or 4.124, for neuritis or neuralgia, respectively. Nevertheless, the evidence of record does not demonstrate that the Veteran has experienced symptoms of loss of reflexes, muscle atrophy, or sensory disturbances of such severity that his bilateral carpal tunnel syndrome warrants a higher rating under any of these or any other diagnostic codes. Based on the evidence of record, no more than a rating of 30 percent for right hand carpal tunnel syndrome and a rating of 20 percent for left hand carpal tunnel syndrome is warranted throughout the appeal period, as the medical evidence supports a disability picture consistent with bilateral moderate incomplete paralysis under DC 8515. The VA examiners found moderate bilateral constant pain, moderate bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. While the VA examiners found decreased strength testing and decreased sensation in both of the Veteran’s hands, strength testing also revealed normal muscle strength on bilateral elbow flexion, wrist flexion, and extension, and bilateral active movement with resistance on grip and bilateral active movement against gravity on pinch. Reflexes were found to be normal. The examiners also found mild and moderate incomplete paralysis of the radial and median nerves bilaterally. The Veteran's post-service VA and private treatment records corroborate the VA examiners’ findings of moderate incomplete paralysis, as they have noted the Veteran’s complaints and treatment for bilateral loss of sensation, decreased grip strength, pain and cramping, but do not demonstrate the symptoms associated with severe or chronic bilateral paralysis. There is no competent evidence of record that establishes that the Veteran has experienced symptoms of severe incomplete paralysis of his bilateral upper extremities during the appeal period. The evidence of record shows that the Veteran’s symptoms were constant, with no evidence of worsening. As such, the Veteran’s symptomology is consistent with the criteria contemplated by the current ratings assigned for his bilateral carpal tunnel syndrome. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).The Board has considered the submitted by the Veteran’s wife, his son, his daughter and his friend, who all observed the Veteran’s symptomology, including pain in his hands all the time, having no hand strength, not being able to work, not being able to participate in his previous hobbies, and not being able to complete simple tasks without assistance. The Board has also considered the Veteran's own lay statements as well as his July 2017 hearing testimony where he detailed his symptoms of loss of feeling and sensation in his hands, decreased grip strength, and cramping at night, and explained how his wife had to do the majority of household chores and driving because of his symptoms. The Veteran, his family, and friend are competent to testify on factual matters of which they have first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is also competent to report symptoms of his left and right hand carpal tunnel syndrome. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations as offered above. The Veteran contends that he is entitled to an increased rating under DC 8512. However, the Board finds that the Veteran is appropriately evaluated under DC 8515. In order to qualify for DC 8512, the Veteran must have lower radicular group paralysis. The lower radicular group includes the radial, medial, and ulnar nerves. The medical evidence indicates involvement of the radial and median nerves but regularly notes that ulnar nerves are normal. As there is no involvement of the ulnar nerve, DC 8512 does not apply. Additionally, the Veteran contends that he meets the criteria of severe under M21-1 MR,Pt. III, subpt. iv, Ch. 4, § N.4.c, specifically "motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability” and argues that the Board must consider that evaluation in reaching its determination. The M21-1 Adjudication Procedures Manual (M-21) reflects the internal rules and procedures for claims adjudication by the Veterans Benefits Administration (VBA). The M-21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. See 38 U.S.C. § 7104 (c). The Board is not required to weigh the M-21, and here the Board finds the moderate rating is appropriate after evaluating all the evidence of record. 38 C.F.R.§4.6. Since a preponderance of the evidence weighs against the Veteran, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Accordingly, the Board finds that a rating in excess of 30percent rating for the right carpal tunnel syndrome and a rating in excess of 20 percent for the left carpal tunnel syndrome is unwarranted, as the Veteran has exhibited symptoms consistent with moderate incomplete paralysis in both upper extremities during the entirety of the appeal period. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.