Citation NR: 9700715 Decision Date: 01/08/97 Archive Date: 02/03/97 DOCKET NO. 95-33 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased (compensable) rating for scars, residuals of an injury to the left (minor) wrist and thumb. REPRESENTATION Appellant represented by: New York Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Curtis W. Fetty, Associate Counsel INTRODUCTION The veteran had active service from February 1945 to May 1946, and from May 1950 to April 1959. This appeal arises from an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which established service-connection for scars, residuals of an injury to the left wrist and thumb, minor, and assigned a zero percent rating. The veteran has appealed to the Board of Veterans’ Appeals (Board) for a compensable rating. The veteran submitted a notice of disagreement on a VA Form 9 in September 1995. In October 1995, the RO issued a statement of the case. The veteran submitted a substantive appeal in October 1995. The veteran also submitted an additional substantive appeal in December 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has pain of the left wrist and forearm caused by scars and other residuals of his service- connected left wrist injury. He contends that pain limits range of motion of the left wrist; he requests a 10 percent rating for this condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bass, it is the decision of the Board that the evidence supports granting the claim for an increased (compensable) rating for scars, residuals of injury, left wrist and thumb. FINDING OF FACT The veteran’s left wrist condition is manifested by non- tender superficial scars and functional loss due to “actual” pain attributed to healed injury; tender, painful scars are not found. CONCLUSION OF LAW The criteria for a 10 percent rating for functional impairment of the left wrist are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Plate I, Code 5215, § 4.118, Code 7805 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran had active service from February 1945 to May 1946, and from May 1950 to April 1959. The veteran underwent VA examination in February 1993. According to the examination report, the veteran had three scars on the flexor aspect of the left wrist and one scar at the base of the left thumb. The report noted evidence of skin sutures. The report noted that no tendons, muscles, or nerves were divided. The report also noted an area of Dupuytren’s Palmar fibromatosis of the left palm at the base of the index finger which caused no contracture of the finger. According to the report, the left wrist and digits exhibited full range of motion. The diagnoses were four lacerations of the left wrist and thumb, and early Dupuytren’s of the left palm which had been present for 6 months. The report also noted 80 pounds’ grasping strength in the right hand, 60 pounds’ grasping strength in the left hand, and that the scars were non-tender and cosmetically acceptable. In August 1993, the veteran submitted a letter from his private treating physician, Dr. Lee Ruotsi, to the effect that the veteran should receive a 15 percent permanent disability for his left wrist. The veteran testified at a hearing in February 1995 that his service-connected left wrist injury had not bothered him very much until 1993. He testified that the pain has gradually increased for no apparent reason. He testified he sought medical advice after he was awakened by a sharp pain in his left wrist. In March 1995, the RO received a letter from Dr. Ruotsi to the effect that the veteran has pain in the left wrist due to the jeep accident in 1945. In a letter to the RO in September 1995, the veteran said that he is now taking daily doses of Diclofenac Sodium to relieve the pain and inflammation in his left wrist. He also expressed disappointment that a 10 percent rating had not been assigned. In his substantive appeal submitted in October 1995, the veteran stated that the pain was constant and at times significantly worse; the pain wakened him up 2 or 3 times per night. He stated that the range of motion of his left wrist was extremely limited due to pain. II. Legal Analysis The record shows that the veteran’s claim is well grounded, meaning that it is plausible. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained and that no further assistance to the veteran is required to comply with the VA duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1995). 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 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with resect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursions of movement in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints; multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (1995). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1995). Limitation of dorsiflexion of either wrist to less than 15 degrees of limitation of palmar flexion of either wrist to in line with the forearm warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Plate I, Code 5215 (1995). Scars may be evaluated on the basis of any related limitation of function of the bodily part which they affect. 38 C.F.R. § 4.118, Code 7805 (1995). A compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face, or neck) requires that they be poorly nourished, with repeated ulceration; that they be tender and painful on objective demonstration; or that they produce limitation of function of the bodily part which they affect. 38 C.F.R. § 4.118, Codes 7803, 7804, 7805 (1995). According to the veteran’s own statements, the only disability that he experiences is pain in the wrist and forearm and limitation of range of motion of the wrist due to pain. The Board notes that under 38 C.F.R. § 4.59, any actually painful (due to healed injury) joint is entitled to at least a minimum compensable rating for the joint and, under Code 5215, the minimum compensable rating for limitation of motion of a wrist is 10 percent. In DeLuca v. Brown, 8 Vet.App. 202 (1995), the United States Court of Veterans Appeals held that in evaluating a service- connected disability, the Board erred in not adequately considering the veteran’s functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. Therefore, a painful joint may be rated compensably disabled even though there is no limitation of motion on examination. In this case, the only evidence as to the cause of the pain is the report of Dr. Ruotsi, attributing the pain to the service-connected injury. His estimate of a 15 percent disability is not probative, as such percentages must be determined by application of the rating schedule. However, the estimate is probative as to the veteran having an “actually painful” joint. Applying DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59 to the instant case, the Board finds that, due to pain of the left wrist, the criteria for a 10 percent rating (the minimum compensable rating) are met. The Board also finds that the evidence does not indicate ankylosis of the wrist or tender, painful, or poorly nourished scars. After consideration of all the evidence, the Board finds that the evidence favors granting the claim for a compensable rating for scars, residuals of injury, left wrist and thumb, minor, currently rated as zero percent disabling. ORDER A 10 percent rating for scars, residuals of injury to the left (minor) wrist and thumb, is granted, subject to regulations applicable to the payment of monetary benefits. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991, amended by Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -