Citation Nr: 0001690 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-06 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 30 percent disabling. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from November 1943 to November 1945. This appeal arises from a decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran is right handed. 3. The service-connected postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist are manifested by a positive Tinel's sign, reduced sharp/dull sensation, and full range of motion of the right fingers and thumb; motor strength of Muscle Group VII is essentially full. 4. The service-connected post-traumatic stress disorder (PTSD) is manifested by intrusive thoughts, occasional flashbacks and nightmares, and a Global Assessment of Functioning (GAF) scale of 65. 5. The veteran's service-connected disabilities are postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist, rated 30 percent disabling, and PTSD, also rated 30 percent disabling. The combined service-connected evaluation is 50 percent. 6. The veteran has an eighth grade education and employment experience as an automobile worker and in an arcade. 7. The veteran's service-connected disabilities alone do not preclude him from securing or following any substantially gainfully occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent for postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.124a, Diagnostic Code 8515 (1999). 2. The criteria for a disability rating greater than 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411 (1999). 3. The criteria for a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring that VA fulfill the statutorily required duty to assist under 38 U.S.C.A. § 5107(a) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board is satisfied that all relevant facts pertinent to these claims have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him as mandated by law. 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 (1999), the Board has reviewed all the evidence of record pertaining to the history of the veteran's right wrist injury postoperative carpal tunnel syndrome median nerve (major) and PTSD. The Board has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disabilities at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Factual Background Service connection for a gunshot wound to the right wrist with damage to Muscle Group VII was granted in a January 1946 rating decision. By various decisions, the diagnostic code was changed to the current Diagnostic Code 5299-8515. Service connection for PTSD was established by a September 1988 rating decision that awarded a 10 percent evaluation. The veteran requested increased ratings for his service- connected disabilities in August 1991. An October 1991 VA rating examination report states that the veteran complained of increased flashbacks, dreaming about his prisoner of war (POW) experience, poor sleep, depression, and increased irritability. On examination, he was oriented and somewhat tense. The examiner felt that the veteran's increased PTSD symptoms had occurred after his right wrist symptoms had increased in severity. He was found to be mildly to moderately incapacitated. The examiner noted the presence of depression as well as PTSD but made no finding of a link between it and his active service or his PTSD. The examination report is negative for objective evidence of carpal tunnel syndrome symptoms. A December 1991 rating decision increased the PTSD evaluation to the current 30 percent based on the above examination report. The veteran was so informed in a letter dated later in December, but he did not initiate an appeal with respect to the evaluation assigned his service-connected post- traumatic stress disorder. A September 1992 VA neurological examination report states that the veteran had surgery for his carpal tunnel syndrome in July 1987. The examination revealed diminution in the cutaneous modalities in the median and ulnar nerve distributions in the right hand, the median nerve much more than the ulnar. The only sensory deficit noted was a Tinel's sign through the median nerve distribution on palpation where the veteran's surgical scar crossed the distal carpal crease. Strength was excellent. No atrophy was noted. Deep tendon reflexes were normal. The diagnosis was residual trauma to the median and slightly to the ulnar nerve at the right wrist, related to shrapnel wounding in 1944, postoperative July 1997, stable since first examined by that examiner in September 1987. The examiner added that the veteran's limitations were more or less mild to moderate in the right hand because of sensory deficit and that the disability had been stable for five years. A September 1992 VA orthopedic examination report states that the veteran was using a plastic splint on his right (major) hand. The surgical scar was well healed. The veteran could make a full fist, but his grip was weak. Dorsiflexion was to 45 degrees and palmar flexion was to 60 degrees. A slight lack of full extension of the right middle finger was noted. The diagnosis was residuals of shell fragment wound of the right wrist with possible carpal tunnel syndrome. During the veteran's personal hearing in September 1993, he testified that he was right handed. He had surgery in 1987 that alleviated a curving of his index finger for a time. He testified that his finger was beginning to curve again and that his grip had weakened. He stated that cold weather bothered his hand and that he had been wearing splints for two or three years. He complained of not being able to lift much and of dropping things with his right hand. The veteran testified that he had paralysis in the heel of his hand and that he had severe pain in his hand. He stated that he could not feel pins that were stuck in his hand. He could only make a very loose fist. He was having difficulty driving with his right hand. A September 1996 Board decision increased the evaluation to the current 30 percent for the service-connected right wrist disability, relying on the above examination report and the veteran's testimony. In May 1997, the veteran reopened his claim for increased ratings for his right wrist disability and post-traumatic stress disorder; he also claimed entitlement to a total compensation rating based on unemployability. A May 1997 peripheral nerve examination report states that the veteran complained of a weak grip and numbness. On examination, the veteran's motor strength was 5/5 throughout, with the exception of the right deltoid, triceps and wrist extensor. He had decreased right grip strength, and the examiner stated that there might be slightly less muscle bulk in the thenar eminence of the right hand compared to the left. Deep tendon reflexes were intact. Pinprick sensation was decreased on the first three finger of the right hand. The impression was some residual of a right carpal tunnel syndrome that affected the use of the right hand for strenuous work. A May 1997 psychiatric examination report states that the veteran complained of flashbacks and that loud noises still bothered him. He stated he was irritable and had panic attacks. He felt that his symptoms had become worse after his retirement. He was sleeping well only because he was taking medication. War movies disturbed him, and he had intrusive thoughts about the war even though he would try to avoid thinking about it. He stated that he had a reasonable social life, but that it was largely made up of fellow VA patients. On examination, the veteran looked younger than his 71 years. There was no evidence of psychotic thought, mood or perceptual disorder. He was not suicidal or homicidal. His sensorium and memory were intact. His mood and affect were fairly good without discernibile abnormalities. His judgment and insight were fairly good. The diagnosis was PTSD. Regarding the veteran's GAF, the examiner noted that the veteran was still anxious and that he had difficulty sleeping. The war was bothering him more since he retired and had less to do. The estimated GAF was 55 to 60. The examiner noted that the veteran had panic attacks in addition to his PTSD. A May 1997 VA general medical examination report notes that there was full range of motion of both wrists without evidence of arthritis, instability or deformity. The radial deviation was to 20 degrees, ulnar deviation was to 50 degrees, dorsiflexion was to 90 degrees and extension was to 70 degrees. The diagnoses included history of a right wrist injury while in service with evidence of decreased strength associated with the right wrist and hand, decreased sensation, and normal range of motion of the right wrist. The examiner also diagnosed marked osteoarthritis and adhesive capsulitis of the right shoulder with markedly decreased range of motion and decreased strength of the right upper extremity. The examiner commented that given the extensive osteoarthritis and adhesive capsulitis of the right shoulder as well as the reported right wrist injury with evidence of decreased strength in the right upper extremity and decreased range of motion of the right shoulder, the veteran was unemployable. A June 1998 VA rating examination report states that the veteran could still write, use tools and eat with his right hand. He could no longer throw with his right hand. The examination revealed that he had excellent fingering and full thumb opposition bilaterally. There were no contractures, depressions, discoloration or tenderness of the right wrist scars. There was no synovitis or crepitus noted. He had palpatory tenderness and a positive grind test in both wrists. There was a positive Tinel's sign on the right. Flexion of his right wrist was to 50 degrees, or 10 degrees less than his left. Bilaterally, extension was to 45 degrees, ulnar deviation was to 20 degrees, and radial deviation was to 30 degrees. Sharp/dull sensation was diminished over the posterior aspect of the right first metacarpal and the entire anterior surface of the right thumb and thenar eminence. Two-point discrimination was 8 to 10 millimeters over the right anterior thumb and 7 to 8 millimeters over all the other dermatomes of both hands. Dynamometer and pinch grasp forces were lower for the right side than the left. The finger and thumb ranges of motion were equal bilaterally. Neither thumb had synovitis or crepitus. Finger and thumb touching were equal bilaterally. The diagnoses included right carpal tunnel syndrome with altered sensation of the right posterior first metacarpal area, probably secondary to a right dorsal radial nerve injury; and bilateral first carpal-metacarpal degenerative joint disease evident on physical examination. The examiner commented that the veteran was employable when the only disability considered was his right carpal tunnel syndrome. The veteran's significant arthritic findings regarding other joints were noted, along with poorly controlled hypertension. The examiner felt that the veteran was unemployable once those conditions and his eighth grade education were also considered. A June 1998 VA psychiatric examination report states that the veteran has an eighth grade education. He complained of being moody at times and of having hypervigilance and an exaggerated startle response. He works in his garden and around the house for enjoyment. He was sleeping five or six hours a night but would dream of his war experience from twice a week to two or three times a month. He would awaken ringing wet with sweat from those dreams. He complained that such things had crowded into his mind more since he quit work ten years previously. He related a history of chronic intermittent suicidal ideation when angry. He had not attempted suicide and had no intent to act on those thoughts. He denied homicidal ideations. He avoided war movies. He reported hearing a voice saying "corpsman, corpsman" at times. The veteran also reported difficulty with anxiety and that for 10 to 12 years he had experienced sweating and dryness in his mouth when he was in enclosed areas. The symptoms would last five to ten minutes. He related that he believed that those symptoms were why he could not work; he could not stand to be in an enclosed area long enough to keep a job. He was taking BuSpar for anxiety. On examination, the veteran appeared notably younger than his stated age. He was oriented in three spheres, and there were no significant cognitive deficits. His affect was bright for the most part, but became blunted when talking about the military. His thoughts were goal oriented. His abstract thinking and judgment were intact. The diagnoses were PTSD, and panic disorder with agoraphobia. The GAF scale was 65 and had been between 65 and 70 during the previous year. The examiner stated that the veteran himself had described the symptoms of panic disorder as the most restricting component of his difficulty. His inability to tolerate closed areas limited his functioning in terms of employment. The examiner felt that the veteran's PTSD had less of an impact than his panic disorder, although he did have a mild motor and affect response. The examiner felt that the degree of impact from the PTSD was mild in comparison to the degree of impact from the panic disorder with agoraphobia, which was felt to be moderate. The report is negative for evidence of any relationship between the veteran's service-connected PTSD and his panic disorder with agoraphobia. A September 1998 VA treatment note states that the veteran reported that he was doing relatively well, that buspirone (BuSpar) was helping him to stay in control. He was sleeping well for the most part, except for occasional nightmares. He was having one or two flashbacks a month. He was taking his psychiatric medications only on an as needed basis rather than regularly. He was alert and cooperative. His mood was euthymic, appropriate and related. His speech was normal in rate, rhythm, goal directedness and word usage. No depressive thought content, suicidal or homicidal ideations, delusions, hallucinations or first rank symptoms were noted. The assessment was that the veteran was stable, and he was encouraged to take his medications regularly. A November 1998 VA outpatient note states that the veteran's parents and his son had died within the past several months. These losses had increased his depression, nightmares and flashbacks. He was increasingly withdrawn and had increased guilt feelings for having been a POW. A December 1998 VA treatment note states that the veteran had indicated that his symptoms were under a degree of control until his parents died within 48 days of each other and his son had also died. He complained that after his grief, all of his symptoms came back in a rush - flashbacks, intrusive thoughts and nightmares. He was feeling quite tired and irritable most of the time and preferred to be by himself. He was not having any suicidal or homicidal ideations. He said, "I feel angry in myself." The note states that a degree of memory difficulties, possibly early signs of vascular dementia were noted. The GAF scale was estimated at 61 to 70. BuSpar and Paxil prescriptions were renewed. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where the issue is entitlement to an increased rating following the filing of a reopened claim, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evidence in closest proximity to the recent claim is the most probative in determining the current extent of impairment. Id. Where there is a question as to which of two evaluations is to 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. A. Carpal Tunnel Syndrome Under the rating schedule, paralysis of the median nerve is evaluated as follows: Complete paralysis is manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, 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 index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances: 70 percent (major upper extremity), 60 percent (minor upper extremity). For incomplete paralysis of the median nerve: Severe 50 (major), 40 (minor); moderate 30 (major), 20 (minor); slight 10 (major), 10 (minor). 38 C.F.R. § 124a, Diagnostic Code 8515 (1999). In the instant case, the veteran has slight limitation of motion of the right wrist, but excellent movement of the thumb and fingers. His grip strength is slightly reduced, but there is no medical evidence of severe incomplete paralysis of the median nerve or complete paralysis of that nerve. Therefore a higher evaluation is not for assignment under Diagnostic Code 8515. Moreover, there is no current demonstration of significant involvement of Muscle Group VII, which functions to flex the wrist and fingers. A 30 percent rating is assignable under Muscle Group VII for moderately severe muscle damage of the major (dominant) upper extremity; a 40 percent evaluation, however, requires a showing of severe muscle damage of the major (dominant) upper extremity. 38 C.F.R. § 4.73, Diagnostic Code 5307. Recent examination findings have shown no significant muscle atrophy or weakness with regard to the muscles controlling flexion of the wrist and fingers on the right. Although some diminished strength is shown, it does not equate to or more nearly approximate that required to show a severe muscle injury such as to warrant an increased evaluation under Diagnostic Code 5307. See 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) in Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), held that scars can be rated separately from injuries to the body because symptomatology relating to scars and to bodily injuries might not be overlapping or duplicative and thus not involve a matter of pyramiding. A 10 percent evaluation is for assignment for superficial, poorly nourished scars with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803. A 10 percent evaluation is for assignment for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars are to be rated on the basis of the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. There is no medical evidence that the veteran's wrist has a poorly nourished or ulcerated scar, one that is tender and painful on objective demonstration, or one that affects the function of his wrist, thumb or fingers. The most recent examination findings show no contractures or significant depression, discoloration, or tenderness of any of the surgical scars. Therefore, a separate rating for a right wrist scar is not for assignment under the holding in Esteban. B. Post-Traumatic Stress Disorder As indicated above, the veteran's reopened claim for an increased rating for post-traumatic stress disorder was received in May 1997. At all times material to this appeal, therefore, the rating criteria for evaluating mental disorders that took effect on November 7, 1996, were solely for application. Under those rating criteria, a 30 percent evaluation under Diagnostic Code 9411 contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation under Diagnostic Code 9400, as amended, contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation under the newly revised criteria contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation under the newly revised rating criteria requires total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9411 (effective November 7, 1996). The record indicates that the veteran has a blunted affect and some restlessness, as well as flashbacks, intrusive recollections and nightmares as a consequence of his post- traumatic stress disorder. However, the Board finds that evidence does not show that as a result of his service- connected PTSD, the veteran suffers from such symptoms circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; or impaired abstract thinking. The evidence shows that the veteran is oriented and that his thought process is goal oriented and without flights of ideas. The examiner found his disability to be stable in September 1998. Indeed, his anti-anxiety medication appears to result in a euthymic mood. The current GAF score, 65, represents mild symptoms or some difficulty in social, occupational, or school functioning, and the veteran had a GAF score between 65 and 70 during that year. The Global Assessment of Functioning is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV)). Under DSM-IV, a GAF scale of 61 to 70 represents generally mild symptoms). (The DSM-IV is applicable under the new rating criteria through 38 C.F.R. § 4.125 (1999).) The Board observes that the veteran has acquaintances with which he occasionally socializes. While the veteran has significant psychiatric problems, the most recent examiner specifically attributed the bulk of his diminished functioning to his nonservice-connected panic disorder with agoraphobia and found that the PTSD-specific symptoms were mild in comparison to those of the panic disorder. Although the evidence shows that the veteran suffers impairment from PTSD, the Board is of the opinion that the veteran's overall disability picture more nearly approximates the criteria for the 30 percent rating currently assigned. See 38 C.F.R. § 4.7. Finally, an extra-schedular rating may be warranted if "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). In this case, there is no evidence that the veteran has ever been hospitalized for treatment of PTSD. In addition, as discussed above, the medical evidence indicates that his PTSD symptoms are mild. Thus, the Board finds that no extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is in order because the regular schedular standards are adequate to rate his service- connected psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against a disability rating greater than 30 percent for PTSD. 38 U.S.C.A. § 5107(b). C. Individual Unemployability A total compensation rating may be assigned where the schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service- connected disabilities render the veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The veteran is service connected for postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist which, as discussed above, is and warrants a 30 percent evaluation under the schedular criteria and does not warrant a higher evaluation on an extra-schedular basis. The veteran is also service connected for PTSD, which also warrants a 30 percent evaluation. While the veteran has only an eighth grade education, he has worked as an automobile worker and could work in a sedentary job. The examiners have carefully noted that the main limitations on his employment are his right shoulder condition and his panic disorder with agoraphobia, neither of which is service connected. Therefore, there is no objective medical evidence that the veteran is unemployable as a result of his service-connected disabilities. See Blackburn v. Brown, 4 Vet. App. 395, 398 (1993) (entitlement to a total disability rating based on individual unemployability must be established solely on the basis of impairment arising from service-connected disorders). The Board therefore finds that entitlement to a total rating based on unemployability due to service- connected disabilities is not warranted. The Board has carefully reviewed the evidence of record in this case but finds that the evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107(b). ORDER An increased evaluation for postoperative residuals of carpal tunnel syndrome of the median nerve of the right wrist is denied. An increased evaluation for PTSD is denied. A total disability rating based on individual unemployability due to service-connected disabilities is denied. WILLIAM W. BERG Acting Member, Board of Veterans' Appeals