Citation Nr: 22045779 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 14-33 366 DATE: August 11, 2022 ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for left carpal tunnel syndrome (CTS) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial disability rating of 30 percent, but no higher, for right CTS is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The symptoms of the Veteran's bilateral CTS more nearly approximated moderate incomplete paralysis but did not more nearly approximate severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, for left CTS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8715. 2. The criteria for an initial disability rating of 30 percent, but no higher, for right CTS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8715. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1989 to June 2011. In March 2021, the Board issued a decision denying initial compensable disability ratings prior to July 23, 2019 for bilateral CTS and ratings in excess of 10 percent after July 23, 2019. In February 2022, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the matters for readjudication. Disability ratings 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Entitlement to higher initial disability ratings for bilateral CTS The Veteran is currently in receipt of noncompensable ratings prior to July 23, 2019, and 10 percent after July 23, 2019, for bilateral CTS under DC 8715, which contemplates neuralgia of the median nerve. DC 8715 (neuralgia) is rated under 38 C.F.R. § 4.124a, DC 8515 (median nerve). Neuralgia is "characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve," with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Under DC 8515, which provides rating criteria for paralysis of the median nerve, a 10 percent rating is warranted for incomplete, mild paralysis of the median nerve. Incomplete, moderate paralysis of the median nerve warrants a 20 percent rating in the minor joint and a 30 percent rating in the major joint. Incomplete, severe paralysis of the median nerve warrants a 40 percent rating in the minor joint and a 50 percent rating in the major joint. Complete paralysis of the median nerve warrants a 60 percent rating in the minor joint and a 70 percent rating in the major joint. Complete paralysis is 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. 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. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. 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. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, 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. In January 2011, prior to discharge from active service, the Veteran underwent a carpal tunnel release in the right wrist. A VA examination was provided in June 2011 to assess the nature of the disability. The Veteran was noted to be right-hand dominant. An examination of the hands and fingers noted a decrease of strength in the right hand but not the left (the Veteran is service-connected for residuals of a fracture of the fourth metatarsophalangeal joint in the right hand). An examination of the wrists showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat deformity, malalignment, drainage, subluxation, or guarding of movement. Neurological examination of both upper extremities showed motor function within normal limits, and sensory examination to pinprick/pain, touch, position, vibration, and temperature was intact. Both upper extremities revealed biceps and triceps jerks of 2+, and brachioradialis was also 2+. Tinel's sign was present in both wrists, but Phalen's test was negative in both wrists. The examiner noted that the upper extremities showed no signs of pathologic reflexes. The examiner documented that the Veteran did not report abnormal sensation, dysesthesias or paralysis. The Veteran reported she was able to perform normal functions with her upper extremities, such as brushing her teeth, driving a car, vacuuming, pushing a lawn mower, gardening, and perform her job in logistics. The Veteran also reported that she had weakness, tingling, and numbness of the fingers, along with weakness with a severity of "eight," that occurred constantly. The Veteran was provided an examination in July 2019 to assess the severity of her bilateral carpal tunnel syndrome. She reported that she experienced more severe symptoms in the left wrist over the right, noting paresthesias that was triggered by typing or driving a car. The Veteran denied constant pain and numbness, but the examiner noted the paresthesias and pain were mild and intermittent in the right upper extremity. In the left upper extremity, the examiner documented severe intermittent pain and paresthesias. A sensory examination was normal with no trophic changes or muscle atrophy, and muscle strength testing was normal. Phalen's sign and Tinel's sign were both positive on the right and left side, and the examiner noted mild incomplete paralysis in the bilateral median nerve. The examiner noted that the disability did not cause functional impairment. For the following reasons, initial disability ratings of 30 percent, but no higher, for right CTS, and 20 percent, but no higher, for left CTS, are warranted. Here, although a health care professional characterized the degree of the Veteran's bilateral CTS impairment as mild, that characterization is not binding on the Board. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). The evidence of record, to include VA examinations, reflects that the severity of the Veteran's bilateral CTS symptoms more nearly approximated moderate, incomplete paralysis. Id. Notably, the Veteran competently and credibly reported constant severe weakness, tingling, and numbness of the fingers. Thus, the Veteran is entitled to initial disability ratings of 30 percent, but no higher, for right CTS, and 20 percent, but no higher, for left CTS. However, higher disability ratings at any point in the appeal period are not warranted because the evidence of record does not reflect that there have been symptoms more nearly approximating severe, incomplete paralysis. "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). Although the Veteran has indicated that symptoms from her bilateral CTS have caused her pain, paresthesias, weakness, and numbness, she has not indicated that the symptoms were so significant and widespread in their effect that findings of severe incomplete paralysis are warranted. Furthermore, the Veteran's symptoms have been predominantly sensory with no trophic changes or muscle atrophy. In this regard, the Board notes that when the involvement is wholly sensory, the rating should be for, at most, the moderate degree. 38 C.F.R. § 4.124a. Thus, the evidence of record reflects bilateral CTS that more closely approximates moderate incomplete paralysis symptoms throughout the appeal period. For the foregoing reasons, initial disability ratings of 30 percent, but no higher, for right CTS, and 20 percent, but no higher, for left CTS, are warranted. The evidence is neither evenly balanced nor approximately so with regard to whether higher disability ratings are warranted at any point during the appeal period. Rather, the evidence at this time weighs persuasively against the criteria required for disability ratings higher than 20 and 30 percent. The benefit of the doubt doctrine is therefore not for application as to these claims. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). H. S. STYER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.