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Board Erred When It Denied an Increased Rating for Carpal Tunnel Syndrome and Found it Lacked Jurisdiction Over TDIU Claim

Board Erred When It Denied an Increased Rating for Carpal Tunnel Syndrome and Found it Lacked Jurisdiction Over TDIU Claim

Summary of the Case

The Veteran served on active duty in the United States Army from April 1976 to December 1978.  During service, a fellow service member stabbed him with a knife in the left forearm, upper arm, chest, abdomen, and back.  In May 1979, the Regional Office (RO) granted him service connection for scars of the left arm, left wrist, and back with a noncompensable rating.  Subsequently, in August 2004, the RO granted service connection for a lower back condition as secondary to his service-connected back scars and assigned a 20 percent disability rating.  The Veteran filed an increased rating claim for his lower back condition in July 2008 but was soon denied.  He appealed the denial to the Board of Veterans’ Appeals in January 2010 and stated that he has been unemployable since 1980 due to his back condition.  In April 2010, he filed a formal application for an increased rating based on unemployability and attended a VA examination which determined that he had left carpal tunnel syndrome with associated left arm dysfunction.  As a result, the RO granted service connection for this condition in April 2012 and assigned a 10 percent rating.  However, TDIU was denied.  The Veteran did not appeal this decision.

In January 2013, the Veteran filed an increased rating claim for all of his service-connected disabilities, to include his left carpal tunnel syndrome and his lower back condition.  After getting denied, he continued to appeal to the Board.  In May 2016, the Board issued a decision that (1) denied his increased rating claim for left carpal tunnel syndrome, a lower back condition, and radiculopathy of the bilateral lower extremities; and (2) found it did not have jurisdiction to hear his claim of entitlement to TDIU.  In its decision, the Board found that even though the Veteran asserted that he was unemployable as a result of his lower back condition, it did not have jurisdiction to hear the matter because the RO had separately adjudicated the issue of entitlement to TDIU in its April 2012 decision, which he did not appeal.

CCK argues against the May 2016 Board Decision, Court agrees

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran’s increased rating claims and found it lacked jurisdiction over the issue of entitlement to TDIU.

Carpal Tunnel Syndrome

In regards to the issue of an increased rating for the Veteran’s left carpal tunnel syndrome, CCK argued that the Board erred by not considering whether he was entitled to a disability rating under Diagnostic Code (DC) 8512.  Specifically, CCK asserted that the Board failed to consider whether he was entitled to a disability rating under DC 8512 in light of evidence that shows his symptoms “affected all or most of his left hand and wrist, not just his thumb and first two fingers.”  The Court agreed that the matter must be remanded as the Board should have considered rating the carpal tunnel syndrome under DC 8512 because it provides a 20 percent rating for mild disability unlike DC 8515, which only provides 10 percent.  Here, the Board completely failed to discuss the applicability of DC 8512.

CCK also argued that the Board failed to provide adequate reasons or bases for its decision to deny referral for extraschedular consideration when it did not explain how DC 8515 adequately contemplated his disability picture.  The Court held that the issue of referral for an extraschedular rating is inextricably intertwined with the Veteran’s schedular rating because development on the schedular claim may potentially reveal a basis for an extraschedular rating.  Accordingly, the Court decided to remand the issue of extraschedular referral as well.

TDIU

CCK argued that the Board erred by failing to adjudicate the issue of entitlement to TDIU even though the issue was properly in appellate status.  CCK contended that because the Veteran appealed the RO’s denial of an increased rating claim for his lower back condition, and because a claim of entitlement to TDIU is part and parcel of an underlying disability claim, the Board had jurisdiction over the matter.  The Court agreed with CCK’s argument and reversed the Board’s legal conclusion that it lacked jurisdiction over TDIU.  On remand, the Court directed the Board to exercise jurisdiction over the TDIU claim and adjudicate the matter in accordance with applicable laws.

 

Category: Court Wins

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