Citation Nr: 21026450 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-59 631 DATE: May 3, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant), is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is right-handed. 2. The Veteran's postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) causes severe incomplete paralysis of the median nerve. CONCLUSION OF LAW The criteria for entitlement to a rating of 40 percent, but no higher, for residuals of carpal tunnel release surgery, left wrist (non-dominant), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.123, 4.124, 4.124A, Diagnostic Code 8615. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from January 1962 until January 1964 and from March 1964 until January 1967. The Veteran appeared before the undersigned in March 2018 for a hearing; a transcript is associated with the claims file. In May 2018, the Board remanded this issue for a VA examination as the Veteran testified that his symptoms have worsened since his March 2015 VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991). Preliminarily, the Board notes that it also remanded the issue of the proprietary of the rating reduction from 30 percent to 10 percent, effective January 1, 2015, for postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued an August 2020 statement of the case; however, the Veteran did not substantively appeal this decision. For this reason, the Board lacks jurisdiction over this issue. On a separate matter, a review of the evidence reflects that the issue of TDIU has been reasonably raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In light of evidence associated with the Veteran's claims file during the entire appeal period, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran's appeal for an increased rating for his left wrist disability, as is reflected on the title page of this decision. Increased Ratings The Veteran seeks an increased rating for his postoperative residuals of carpal tunnel release surgery, left wrist. He contends that this disability is worse than is currently rated. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the level of current impairment, it is essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The AOJ has assigned the Veteran's postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) a 10 percent rating under 38 C.F.R. § 4.124A, DC 8615. Under Diagnostic Code 8615, a 60 percent (minor arm) or 70 percent (major arm) rating is assignable for complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, 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 the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. Neuritis and neuralgia are to be rated as incomplete paralysis. Neuritis, "characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating," shall not be rated higher than severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating assignable for "neuritis not characterized by organic changes referred to in this section" is moderate, or with sciatic nerve involvement, moderately severe incomplete paralysis. Id. Neuralgia, "characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve," shall not be rated higher than moderate incomplete paralysis. 38 C.F.R. § 4.124. When neural involvement is wholly sensory, it should be rated as mild, or at most, moderate incomplete paralysis. 38 C.F.R. § 4.124A. Ratings ranging from 10 to 50 percent are assignable for incomplete paralysis, defined in the rating schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 50 percent (major arm) or 40 percent (minor arm) rating is assignable for severe incomplete paralysis. A 30 percent (major arm) or 20 percent (minor arm) rating is assignable for moderate incomplete paralysis. A 10 percent (major or minor arm) rating is assignable for mild incomplete paralysis bilaterally. 38 C.F.R. § 4.124a, DC 8515. Entitlement to a rating in excess of 10 percent for postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) The Veteran is right hand dominant. In October 2010, the Veteran submitted an informal claim for an increased rating, followed in November 2010 by new, private medical records of nerve testing that displayed abnormal results. A VA peripheral nerve examination diagnosed both postoperative carpal tunnel syndrome and cervical radiculopathy, and an interpretive statement from the Veteran's private neurologist asserted that the November 2010 nerve testing suggested multilevel radiculopathies. In May 2012, the Veteran underwent another VA peripheral nerve examination, which yielded diagnoses of mild incomplete paralysis of the left median nerve and also moderate incomplete paralysis of the left lower radicular group of nerves. In December 2012, an addendum opinion was sought to distinguish the symptoms stemming from the Veteran's service-connected carpal tunnel syndrome from those attributable to his non-service-connected cervical radiculopathy. The addendum examiner stated that only the numbness in the first three fingers of the Veteran's left hand was most likely due to left carpal tunnel syndrome. She stated that the numbness from his neck down his left arm and to other parts of his left hand, as well as weakness in his grip and in his left wrist extensors and flexors, were most likely attributable to his non-service-connected cervical radiculopathy. At a March 2015 VA examination, the Veteran reported that he has pain from the left neck down and numbness of the entire left hand. The VA examiner estimated that the Veteran had moderate constant pain, severe intermittent pain, severe paresthesias, and severe numbness. The VA examiner describe these symptoms as resulting in mild incomplete paralysis. The VA examiner also stated that the Veteran was a carpenter but is no longer able to work as he cannot use his hands well or lift things such as a nail bag. On October 2018 EMG shows mild carpal tunnel syndrome, left wrist. December 2018 private treatment records show that the Veteran was diagnosed with carpal tunnel syndrome, left upper limb, and reported symptoms of hand pain and numbness. At a December 2019 peripheral nerve VA examination, the VA examiner diagnosed the Veteran solely with bilateral carpal tunnel syndrome and attributed all symptoms to this disability. Regarding the left upper extremity, the VA examiner indicated that the Veteran had severe pain, moderate paresthesias, and severe numbness. The Veteran scored a 3 out of 5 on wrist extension and grip muscle strength; he had hypoactive brachioradialis, and absent sensation in his left hand and fingers. The VA examiner estimated that the Veteran's left upper extremity carpal tunnel syndrome resulted in severe incomplete paralysis and that he retired 25 years ago because "he could not use his hands especially on the left." In June 2020, a clarification opinion was obtained. Therein, the VA examiner stated that the Veteran's significant symptoms of weakness and pain to the left upper extremity are associated more with his non-service-connected cervical radiculopathy given his spinal stenosis at C5-C6 level. The examiner also opined that while the Veteran has left upper extremity carpal tunnel syndrome affecting the median nerve, this affects his left upper extremity less so based on the stenosis of his cervical spine since 2000. The June 2020 VA examiner did not specifically delineate the symptoms attributable to the Veteran's service-connected carpal tunnel syndrome. Instead, the VA examiner generally concluded that the Veteran's non-service-connected cervical radiculopathy more significantly causes his symptoms of tingling, numbness, and pain of the left hand. Based on the above, and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise and that the Veteran's postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) warrants a 40 percent rating. In so finding, the Board points particularly to the December 2019 VA examination whereby the VA examiner opined that the Veteran's carpal tunnel of the left upper extremity solely causes severe incomplete paralysis of the median nerve. Importantly, the Board finds that in a situation such as this where it is not possible to distinguish symptoms attributable to service-connected and non-service-connected disabilities, the Board will consider all of the symptoms as attributable to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). While the June 2020 VA examiner opined that the Veteran's non-service-connected cervical radiculopathy more significantly causes his symptoms of tingling, numbness and pain of the left hand rather than his service-connected carpal tunnel syndrome, she failed to specifically distinguish the symptoms between each disability. Moreover, she left room in her explanation for the possibility that the Veteran's left upper extremity carpal tunnel syndrome plays some role in his current severe symptoms and, indeed, failed altogether to specifically outline what symptoms were caused by the service-connected carpal tunnel syndrome. Contrarily, the December 2019 VA examiner opined that all of the Veteran's severe incomplete paralysis symptoms of the left upper extremity were attributable to his service-connected carpal tunnel syndrome. Given that the Board is unable to specifically attribute symptoms caused by his service-connected and non-service-connected disabilities, and resolving all doubt in the Veteran's favor, all of them are now attributable to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). However, the evidence does not show that a higher 60 percent rating is warranted. The medical evidence, to include the December 2019 VA examination, has not shown the complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, 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 the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. As there is no evidence of record to suggestand the Veteran does not claimthat he experiences such symptomatology, the Board concludes that a 60 percent rating is not warranted here. Based on the above, the Veteran's service-connected postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) warrants a 40 percent rating. The benefit of the doubt doctrine has been applied. REASONS FOR REMAND 1. Entitlement to TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. While medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity, 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Importantly, marginal employment, or "ability to work only a few hours a day or only sporadically," such as maintaining part-time self-employment as a counselor and tutor, is not to be considered an "ability to engage in substantially gainful employment." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Here, the Veteran is service connected for postoperative residuals of carpal tunnel release surgery, left wrist (non-dominant) at 40 percent disabling, and postoperative residuals of ganglion cyst excision, left wrist at 0 percent disabling. As such, the Veteran does not qualify for a schedular TDIU. Therefore, the question is whether the Board should refer this claim to the Director of the Compensation Service for extraschedular consideration. The Board will not again detail all of the relevant and material evidence in the claims file regarding the Veteran's claim of entitlement to TDIU. Instead, the Board directs the reader to the above discussion; however, it notes that the March 2015 and December 2019 VA examiners opined that the Veteran is unable to work as a carpenter as he needed to retire 25 years ago because "he could not use his hands especially on the left." The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Consequently, the issue of entitlement to TDIU is referred to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, education, and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.