Citation Nr: 9915003 Decision Date: 05/27/99 Archive Date: 06/07/99 DOCKET NO. 98-05 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for carpal tunnel syndrome (CTS) of the right upper extremity, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for carpal tunnel syndrome (CTS) of the left upper extremity, currently evaluated as 10 percent disabling. 3. Entitlement to an increased, compensable, evaluation for degenerative joint disease of the cervical spine. 4. Entitlement to service connection for post traumatic stress disorder (PTSD). 5. Whether new and material evidence has been presented to reopen a claim for service connection for a liver disorder, to include hepatitis C. 6. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to September 1967, and from November 1990 to October 1992. This case arises before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the veteran's representative has contended that the veteran submitted a claim for service connection for an undiagnosed illness related to his Persian Gulf service. It is contended that his complaints of multiple joint and muscle pain and fatigue, and gastric complaints are attributable to an undiagnosed illness. The Board agrees that such a claim was entered in June 1994, but it has not yet been fully developed for appellate review. The matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's bilateral CTS is currently manifested by EMG findings of mild CTS and subjective complaints of pain and weakness of the hands and wrists. 3. New and material evidence has been presented to reopen the veteran's claim for service connection for a liver disorder and hepatitis C. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation, in excess of 30 percent, for carpal tunnel syndrome of the right hand are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 and Supp. 1998); 38 C.F.R. §§ 3.321, 4.124a Diagnostic Code 8516 (1998). 2. The criteria for an increased evaluation, in excess of 10 percent, for carpal tunnel syndrome of the left hand are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 and Supp. 1998); 38 C.F.R. §§ 3.321, 4.124a Diagnostic Code 8516 (1998). 3. New and material evidence has been received since the last denial of service connection for a liver disorder, and that claim is reopened. 38 U.S.C.A. § 5108 (West 1991 and Supp. 1998); 38 C.F.R. § 3.156 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an increased evaluation for bilateral carpal tunnel syndrome (CTS), currently evaluated as 30 percent disabling on the right, and 10 percent disabling on the left. Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is satisfied that all relevant facts pertaining to the bilateral CTS disability have been properly developed. There is no indication that there are additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The appellant claims that his bilateral CTS disability has worsened and warrants an increased disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in the SCHEDULE FOR RATING DISABILITIES represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1998). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1998). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). Service connection for bilateral CTS was granted via a rating decision of June 1993. An evaluation of 30 percent was assigned on the right and 10 percent for the left. A review of the veteran's service medical records shows the him complaining of swollen tingling hands for the past two days on February 20, 1991. He has since attributed his CTS disorder to an accident in which a tent collapsed on him, however, service medical records indicate that this incident occurred on February 26, 1991. Service medical records show a diagnosis of mild CTS, with subjective complaints of pain which could not be accounted for by objective findings. The report of a VA peripheral nerves examination, conducted in December 1992, shows the veteran complaining of pain, swelling, tingling, of both hands since February 1991. He reported that he had trouble holding things, and often dropped items, especially with the right hand. The diagnosis was probable CTS, this was verified by EMG testing which showed CTS, worse on the right. Further EMG studies, done in February 1994, showed mild sensory slowing in the finger-wrist segment of the right median nerve, prolonged terminal latency and F-wave of the right median nerve. There were normal NCV findings of the bilateral ulnar and left median nerves, and proximal segments of the right median nerve. The conclusion was findings indicative of mild, right, distal, median neuropathy as seen in CTS. The report of a VA peripheral nerves examination, conducted in August 1996, shows the veteran giving a history of developing CTS in service. He complained of difficulty driving because of his inability to grasp the steering wheel. He reported that he cannot write or tie his shoes properly, and that he cannot cut grass because he cannot stand the vibration of the lawn mower. He reported constant tingling and numbness. He also reported that he suffers from diabetes. Physical examination showed slight puffiness of the right hand, a little bit swollen and edematous. He also had slightly swollen fingers on the left hand. Reflexes were not elicited at the biceps, triceps, and brachial radialis muscles, tendons. The strength in the proximal arm was 5/5 bilaterally. Distal on the hand showed 4/5 bilaterally. He reported pain on squeezing his fingers. There was no atrophy of the thenar muscles of the hands noted. Phalens sign was positive in both hands. Tinel's sign was absent in both forearms. Light touch is normal on both sides. The impression was CTS worse on the right. EMG tests were recommended, however, they do not appear to have been carried out in conjunction with this examination. The Board notes the veteran's testimony at his personal hearing, conducted in May 1997. He stated that he is in constant pain, that his hands turn red, that he has difficulty holding things, and that he has daily swelling. He reported that he used a TENS unit for relief of pain, but that no surgery was planned for his disorder. The reports of VA outpatient treatment clinic reports, dated in June 1998, show the veteran with a grip strength of 18 on the right and 13 on the left. Pinch strength was as follows: Lateral pinch Right 6, Left 5; Tip to Tip Right 1, Left 3; Jaw Chuck Right 1, Left 2. Pain was noted in wrist flexion and extension, and finger flexion and extension. Pain was noted in gripping and grasping objects and slight finger movements. Mobility was intact. The veteran's representative has contended that the veteran was incorrectly evaluated under Diagnostic Code 8516 for an ulnar nerve disability. The Board agrees with this assertion as the report of the February 1994 EMG examination showed mild sensory slowing in the finger-wrist segment of the right median nerve, prolonged terminal latency and F-wave of the right median nerve, but normal NCV findings of the bilateral ulnar nerves. Service medical records also showed median, not ulnar nerve involvement. Therefore the correct rating should be under Diagnostic Code 8515 for incomplete paralysis of the median nerve. The veteran's representative contends that the medical evidence shows involvement of the whole lower radicular group. The Board concludes that, although physical examination has shown weakness which might suggest this, the most recent EMG examinations have not confirmed the involvement of any but the median nerve. The Board notes that during active service the veteran's complaints of pain and weakness were noted to be out of proportion to any objective findings. Findings at that time were mild CTS of the bilateral upper extremities. Objective evidence has continued to show mild CTS. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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. 38 C.F.R. § 4.124a, Schedule of Ratings for Disease of the Peripheral Nerves (1998). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (1998). 38 C.F.R. § 4.124a Diagnostic Code 8515 provides for a 10 percent rating for mild incomplete paralysis of the median nerve. An evaluation of 20 percent is assigned for moderate incomplete paralysis of the minor, and 30 percent for the major hand. A severe condition calls for a 50 percent for major and a 40 percent for the minor hand. The Board concludes that the EMG evidence is the most convincing regarding the level of disability. This evidence has not shown a condition described as moderate on any of the three examinations; inservice examination, November 1992, and February 1994 VA examinations. The Board considers this evidence more convincing that the veteran's subjective complaints of pain and weakness. Active duty studies showed mild CTS involving the median nerve, studies in November 1992 merely note CTS, bilateral, right worse than left; and in February 1994 findings again were described as mild, and noted CTS only on the right. The most reliable objective evidence in the claims folder shows only a mild disability. The criteria for increased evaluations for CTS have not been met. 2. Whether new and material evidence has been presented to reopen a claim for service connection for a liver disorder, to include hepatitis C. The veteran contends, in essence, that new and material evidence has been presented to reopen his claim for service connection for a liver disorder. Service connection for a liver disorder was denied by a rating decision of June 1993. Evidence submitted subsequent to the June 1993 denial includes the opinion of Dr. Craig N. Bash, Associate Director of Medical Services for the Paralyzed Veterans of America. In a statement, dated in March 1999, Dr. Nash stated that, after a review of the claims folder, that the veteran had abnormal enzyme liver enzyme levels during service, and that this indicated inservice liver damage. He also opined that the veteran's diabetes was a result of this liver damage. The Board concludes that new and material evidence has been presented and the claim is reopened. ORDER Entitlement to an increased evaluation, in excess of 30 percent, for CTS of the right upper extremity is denied. Entitlement to an increased evaluation, in excess of 10 percent, for CTS of the left upper extremity is denied. New and material evidence has been presented to reopen the claim for service connection for a liver disorder to include hepatitis C. REMAND With regard to the veteran's claim for an increased evaluation for arthritis of the cervical spine, the Board notes that the most recent VA examination regarding this disability occurred in November 1992. The report of that examination showed painful rotation with associated stiffness. X-ray examination in May 1997 showed degenerative joint disease. Service medical records showed degenerative disc disease. There is also some evidence of rheumatoid arthritis, which is not service connected. The Board finds that a review of the record, an examination, and an opinion would be helpful to determine the current level of the veteran's cervical spine disability. An opinion regarding what proportion of this disability is due to service connected degenerative joint disease, and what proportion may be due to rheumatoid arthritis would be helpful; if such a distinction can be made. With regard to the veteran's claim for service connection for PTSD, the Board notes that the veteran has contended that he was in the vicinity of SCUD missile explosions, and has on one occasion given a history of being in a tent which was very close to another tent which was hit by such a missile. The claim has not yet been developed with regard to research by the U.S. Armed Services Center for Research of Unit Records (USASCRUR). The Board finds that information regarding the whereabouts of the veteran's unit on specific dates, and information regarding its proximity to SCUD missile impacts would be helpful. The Board further notes that VA examinations and treatment records, which have rendered diagnoses of PTSD, were conducted without a full review of the record. The record reveals that the veteran had VA hospitalizations for alcoholism in 1986, 1987, and 1989. Only a hospital report from the 1987 hospitalization is contained within the claims folder. This indicated symptomatology similar to that claimed by the veteran after his return from Saudi Arabia. The Board finds that a full review of treatment records regarding the veteran's substance abuse, and possible associated mental health treatment would be necessary prior to rendering an accurate diagnosis. The Board concludes that the veteran's record regarding these matters should be obtained. It should be reviewed, and the veteran should be examined by a board of three psychiatrist who have not formerly examined the veteran. With regard to the veteran's claim for service connection for diabetes mellitus, the Board notes the above referenced statement by Dr. Bash, to the effect that he believes the veteran had elevated glucose levels while on active duty, and within one year following discharge. There was, however, no diagnosis of diabetes mellitus entered during this period. The Board finds that a review of the evidence by a specialist would be helpful. The Board seeks an opinion regarding the likelihood that these slightly elevated readings were the onset of diabetes or merely inconsistent readings. The Board has determined that new and material evidence has been received with regard to the veteran's claim of entitlement to service connection for a liver disorder, and that his claim has accordingly been reopened. It is now incumbent upon the RO to review the entire evidentiary record, in accordance with regulatory and statutory provisions that govern the adjudication of a reopened claim, prior to any further Board consideration of this issue. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board further requests that a complete review of the evidence be undertaken by a specialist in this area. Special note should be taken of the veteran's history of heroin use from 1976 to 1980, as provided in medical history by the veteran. The Board seeks an opinion regarding the likely origin of the veteran's claimed liver disorder, be it from chronic alcoholism, hepatitis, or some other cause. This expert should be asked to render an opinion in concert with the examiner reviewing the claim with regard to service connection for diabetes mellitus. Dr. Bash's statement shows an opinion that the veteran's diabetes was caused by liver damage and hepatitis C. The Board specifically seeks a second opinion regarding this theory, as well as an opinion regarding the likely origin of the veteran's liver disorder. Therefore this claim is REMANDED to the RO for the following: 1. The veteran should be scheduled for an examination regarding his cervical spine disability. The examiner should be asked to provide an opinion regarding the veteran's current level of disability, taking into account his complaints of pain on motion. He should also be asked to review the record, and if possible, to differentiate between the level of disability attributable to the veteran's service connected disability and that attributable to his rheumatoid arthritis. 2. The RO should obtain all VA records regarding mental health treatment and substance abuse treatment from September 1983, when the veteran returned to Alabama from Detroit, Michigan, to November 1990 when he was activated for Operation Desert Shield. The request for records should include all VA treatment facilities in Alabama. 3. The RO should request information regarding the veteran's unit's activities during its deployment to Southwest Asia. Of particular interest are the dates that the unit was located in the Dhahran area, and whether any SCUD missiles impacted within close proximity to the unit's staging area. 4. Upon completion of the previous two items the veteran should be examined by a board of three psychiatrists who have not previously examined him. These examiners should be asked to review the veteran's records, to include his preservice substance abuse treatment records. 5. The examiners should be asked to provide an opinion regarding the veteran's claimed PTSD. They should be asked to ascertain if the veteran currently has PTSD, and what particular stressful events this disorder is related to. 6. The examiners should be informed that his opinion will be most helpful to the Board if phrased in one of the following manners: The veteran's claimed PTSD is (1) definitely related to his claimed inservice stressors (2) more likely than not related to his inservice stressors (3) as likely as not related to his inservice stressors (4) more likely than not unrelated to his inservice stressors (5) definitely unrelated to his inservice stressors. 7. The veteran's claims folder should be reviewed by the appropriate medical experts regarding his claims for service connection for diabetes mellitus and a liver disorder to include hepatitis. The should be asked to provide an opinion regarding the origins of the veteran's diabetes mellitus and hepatitis. The Board seeks an opinion as to the likely onset date of the diabetes mellitus and requests an opinion regarding its etiology. The examiner should be asked to review Dr. Bash's statement in the claims folder prior to entering his opinion. 8. Regarding the veteran's claim for service connection for a liver disorder and hepatitis, the examiner should render an opinion regarding the etiology of the disorder. The Board specifically requests an opinion regarding whether or not the veteran's disorder is more likely related to his preservice chronic alcohol and heroin abuse, or to his brief period of active service. 9. The examiner should be informed that his opinion will be most helpful to the Board if phrased in one of the following manners: The veteran's claimed liver disorder and hepatitis C are (1) definitely related to his military service (2) more likely than not related to his military service (3) as likely as not related to his military service (4) more likely than not unrelated to his military service (5) definitely unrelated to his military service. Upon completion of the above described items the RO should review the veteran's claims. If the determinations remain adverse the RO should provide the veteran and his representative a supplemental statement of the case and adequate time to respond. The claim should then be returned to the Board for further appellate review. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals