Citation Nr: 22018371 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-07 638 DATE: March 29, 2022 ORDER From March 4, 2017, to November 9, 2021, entitlement to an initial rating of 30 percent, but no higher, for carpal tunnel syndrome of the right hand, is granted, subject to the law and regulations governing the award of monetary benefits. From November 10, 2021, entitlement to an initial rating of 50 percent, but no higher, for carpal tunnel syndrome of the right hand, is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From March 4, 2017, to November 9, 2021, the Veteran's right hand carpal tunnel syndrome of his median nerve is manifested by, at worst, moderate incomplete paralysis without severe incomplete paralysis. 2. From November 10, 2021, the Veteran's right hand carpal tunnel syndrome of his median nerve is manifested by, at worst, severe incomplete paralysis without complete paralysis. CONCLUSIONS OF LAW 1. From March 4, 2017, to November 9, 2021, the criteria for entitlement to an initial rating of 30 percent, but no higher, for carpal tunnel syndrome of the right hand, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8515. 2. From November 10, 2021, the criteria for entitlement to an initial rating of 50 percent, but no higher, for carpal tunnel syndrome of the right hand, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 2007 to October 2007, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. It was previously before the Board when the Veteran testified in June 2020 at a hearing conducted via videoconference before the undersigned Veterans Law Judge and was subsequently remanded in May 2021 for further development. A transcript of that hearing has been associated with the claims file. It has now been returned to the Board for further adjudication. The Board notes that after the Board's May 2021 remand, in a January 2022 rating decision, the Veteran was granted service connection for his left-hand carpal tunnel syndrome at 10 percent, which was the other issue being appealed. As such, this issue has been resolved and is no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). 1. Entitlement to an initial increased rating evaluation in excess of 10 percent for carpal tunnel syndrome of the right hand. The Veteran was granted service connection for his right-hand carpal tunnel syndrome (CTS) disability in an August 2010 rating decision, effective November 2, 2009, the date of his claim, based on the results of an EMG that showed mild nerve neuropathy of the right wrist. The Veteran subsequently filed an increased rating claim in March 2017, seeking an increased rating in excess of 10 percent, which was denied by the RO in the August 2017 rating decision. He then filed a notice of disagreement (NOD) in January 2018, seeking an increased rating of at least 30 percent, which is the basis of his appeal to the Board. Increased Rating The Veteran claim is currently rated under Diagnostic Code (DC) 8515. Because the Veteran is right-handed, his right side is his major (dominant) side and will be rated accordingly. Diagnostic Code 8515 addresses complete and incomplete paralysis of the medial nerve. Under this diagnostic code, moderate incomplete paralysis warrants a 20 percent rating for the minor wrist and a 30 percent rating for the major wrist. Severe incomplete paralysis warrants a 40 percent rating for the minor wrist and a 50 percent rating for the major 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 60 percent rating for the minor wrist and a 70 percent disability rating for the major wrist. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Board will also consider Diagnostic Codes 5214, 5215 when evaluating the Veteran's right-hand CTS disability. Diagnostic Code 5214 provides for a 30 percent disability evaluation when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the major wrist. A 40 percent disability evaluation is contemplated for ankylosis of the major wrist in any other position, except favorable. A maximum 50 percent rating is assigned for ankylosis of the major wrist when ankylosis is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a. A note to Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. The term "unfavorable ankylosis" is not specifically defined in the VA Schedule for Rating Disabilities. In such a case, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion. 38 C.F.R. § 4.71, Plate I. Normal ulnar deviation is 45 degrees, while normal radiation deviation is 20 degrees. Id. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Diagnostic Code 5215 provides for a maximum rating of 10 percent for limitation of motion of the wrist for either the dominant or non-dominant hand when dorsiflexion is less than 15 degrees or when palmer flexion is limited in line with the forearm. 38 C.F.R. § 4.71a. A 10 percent rating is the maximum rating available under Diagnostic Code 5215. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Ratings 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." 38 C.F.R. § 4.6 (2020). It should also be noted that use of such terminology 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. 38 C.F.R. § 4.2, 4.6 (2020). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 8515 was not changed. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Medical Examinations and Records The Veteran was afforded a VA examination to assess the severity of his right-hand CTS disability in May 2017, pursuant to his March 2017 increased rating claim. Upon examination, no evidence of pain with use of the right hand was noted and the Veteran reported no flareups. The VA examiner reported that the Veteran's range of motion (ROM) and functional limitations were all normal; that 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. Further, that no pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability with repeated use over a period of time; the examiner also indicated that the Veteran did not have ankylosis in any of his fingers, but with regards to other pertinent findings, the examiner reported "positive tinell sign at wrist bilaterally." The examiner also reported that the EMG testing was performed which confirmed the Veteran's bilateral CTS. The examiner indicated that the Veteran exhibits mild intermittent pain, mild paresthesias and or dysesthesias, and mild numbness, all in the Veteran's right upper extremity. Muscle strength testing reflected normal strength (5/5) for his right wrist, right elbow flexion and extension, right grip and right pinch; the examiner also indicated that the Veteran exhibited mild incomplete paralysis of the median nerve and that the Veteran uses a brace occasional at night. The Veteran was afforded another examination in November 2021 (because he testified that his CTS symptoms had worsened). During this examination, the Veteran reported ongoing symptoms of pain, numbness and tingling of his right hand. This time, the examiner indicated that the Veteran exhibits mild constant pain, mild intermittent pain, moderate paresthesias and or dysesthesias, and mild numbness, all in the right upper extremity. Muscle strength testing still reflects normal strength (5/5) for his right wrist and right elbow flexion and extension, right grip and right pinch, with no atrophy. Special tests for Median Nerve were conducted and reported as follows: "Phalen's sign: Right: [X] Positive; Tinel's sign: Right: [X] Positive." The Veteran's range of motion and functional limitations were all noted as normal and 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. Most notably, unlike the prior May 2017 VA examination, during this November 10, 2021, examination, the Veteran reported flareups that lasted 1-2 hours "with heavy usage of the hands," which the examiner characterized as dull to sharp neuropathic pain. Precipitating factors were noted as: "repetitive and constant usage of the hands and fingers for longer than 25 min, alleviated by rest." The Veteran also reported numbness to both hands, but that it is worse on his right side; functional impairment was specifically noted during this examination (another deviation from the prior May 2017 VA examination), with the Veteran reporting he has to stop any activity that involves fine dexterity usage of the finger or repetitive motion of the wrist. The examiner's overall assessment was that the Veteran exhibited mild incomplete paralysis of the median nerve; he also noted that the Veteran does not use any assistive devices. The Board has also reviewed the Veteran's medical treatment records for the entire appeal period. However, the Board finds that the Veteran's records do not show reports of right hand/wrist pain or numbness that are worse than what was reported at the Veteran's VA examinations. Also, there were no reports of lost range of motion. For instance, in June 2017, the Veteran reported that he had trouble driving due to his bilateral CTS; also, that he was experiencing mostly numbness and tingling; in February 2019, it was noted that his finger dexterity was intact; however, on June 21, 2021, the Veteran reported that the braces he uses on his wrists for his CTS was not working because he was awakening at night due to bilateral wrist pain, and that he felt his job was threatened by his disability. Further, the Board has also taken into consideration the Veteran's testimony during June 2020 Board hearing that his CTS negatively impacts his job as an instructor (he works as Federal Police Officer with the Department of Defense) because his fingers sometimes go numb during firearms training, at which time he has to put his weapon down, hold off the session a few minutes until his symptoms pass, and in some cases find another instructor to cover for him. Further, that he sometimes experiences numbness of his hands while driving long distances, and in such cases, he would have to pull over; and that although he sleeps with hand braces to ease his symptoms, he is still experiencing worsening symptoms. These reports of his increased severity of his symptoms were the primary reason why this matter was remanded by the Board in May 2021 for a new VA examination. From March 4, 2017, to November 9, 2021 For the reasons discussed below, the Board finds that the Veteran's right-hand CTS disability warrants an increase in rating from 10 percent to 30 percent under Diagnostic Code 8515 from March 4, 2017, to November 9, 2021. The Board finds that the Veteran's reported symptoms of pain, numbness, and tingling in his right hand were of mild to moderate severity during this period of his appeal, warranting a 30 percent rating, rather than his current 10 percent rating. This is the case notwithstanding the fact that the May 2017 VA examiner indicated that the Veteran had mild pain, paresthesias/dysesthesias, and numbness, because the report also indicated that the Veteran experienced all of these symptoms concurrently, which the Board finds to be reflective of more of a moderate level of incomplete paralysis of the median nerve. In addition, the Veteran testified during the June 2020 Board hearing that his bilateral CTS negatively impacts his job as an instructor (the Veteran works as Federal Police Officer with the Department of Defense) because his fingers sometimes go numb during firearms training, at which time he is required to put his weapon down, hold off the session a few minutes until his symptoms pass, and in some cases find another instructor to cover for him. Further, that he sometimes experiences numbness of his hands while driving long distances, and in such cases, he would have to pull over. The Board notes that otherwise, the Veteran's range of motion and functional limitations were all normal; he 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. The examiner also indicated that the Veteran did not have ankylosis in any of his fingers, and normal muscle strength testing was reflected (5/5) for his right wrist. As such, the Board finds that the next higher rating of 50 percent or more is not warranted during this period because the Veteran's incomplete paralysis of the medial nerve was at most moderate. (The Board will discuss consideration of a higher than 50 rating percent for the rest of the appeal period below.) Under such circumstances and in granting the Veteran the benefit of any doubt in this matter, the Board finds that the criteria for a 30 percent rating, but not higher, is warranted for the Veteran's right-hand carpal tunnel syndrome, effective from March 4, 2017, to November 9, 2021. From November 10, 2021 The November 10, 2021, VA examination (received January 4, 2022) reflected a marked severity in the Veteran's right-hand CTS, since his prior May 2017 VA examination, specifically with regards to his assessment of functional impairment, which is more approximate to a severe paralysis of the median nerve, warranting a 50 percent rating. For instance, the Veteran now reported flareups that lasted 1-2 hours, "with heavy usage of the hands," which interferes with the performance of his job. Further, the Veteran reported that he had to stop any activity that involves fine dexterity usage of the finger or repetitive motion of the wrist. This is further supported by the Veteran's positive test for Phalen's sign and Tinel sign, which indicates some degree of median nerve damage. Moreover, as was noted previously, the Veteran testified during the June 2020 Board hearing that his bilateral CTS negatively impacts his job as an instructor (he works as Federal Police Officer with the Department of Defense) because his fingers sometimes go numb during firearms training, at which time he has to put his weapon down, hold off the session a few minutes until his symptoms pass, and in some cases find another instructor to cover for him. Further, that he sometimes experiences numbness of his hands while driving long distances, and in such cases, he would have to pull over. Consequently, after weighing all of the evidence, particularly the findings of the November 10, 2021, VA examination, the Board finds that the pain, paresthesias, and numbness in the Veteran's right dominant hand demonstrates that he exhibits severe incomplete paralysis of the median nerve from this date to the present. Consideration of a higher rating or a separate compensable rating The Board finds that the next highest rating of 70 percent (dominant hand) is not warranted at any point throughout the entire appeal period (from March 4, 2017, to the present) because complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, atrophy of the muscles of thenar eminence, the thumb in the plane of the hand were all not reported. The Board has considered a higher or separate rating under different diagnostic codes, but the record does not reflect that this is warranted. Specifically, with regards to DC 5124, the medical evidence of record does not show an injury to muscle group VII or ankylosis in the fingers or wrist. As there was no reported injury that is tantamount to loss of hand, a rating evaluation under DC 5125 is also not warranted in this case. Consequently, under these circumstances and granting the Veteran the benefit of any doubt in this matter, the Board finds that the criteria for a 50 percent rating, but not higher, is warranted for the Veteran's right-hand carpal tunnel syndrome effective from November 10, 2021. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.