Citation Nr: 0810005 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-10 906A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to a rating in excess of 10 percent for residuals of a right wrist fracture. 3. Entitlement to a rating in excess of 10 percent for a right index finger disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who retired in September 1990 after 20 years of active duty. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that continued 10 percent ratings for right wrist and index finger disabilities; and denied service connection for residuals of a head injury. In December 2007, A Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. At the hearing the veteran was granted a sixty-day abeyance period for submission of additional evidence. No evidence was received during such period. The record raises a question of whether the veteran has a neurological disability entity of the right upper extremity which is secondary to his service connected right wrist disability. This matter has not been addressed by the RO. It is referred to the RO for any appropriate action. The issue of entitlement to service connection for residuals of a head injury is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. The 10 percent rating assigned for the veteran's right wrist disability is the maximum rating provided for limitation of motion of the wrist; ankylosis of the wrist is neither shown, nor alleged; factors warranting extraschedular consideration are neither shown, nor alleged.. 2. The 10 percent rating currently assigned for the veteran's right index finger disability is the maximum schedular rating provided for such disability where the finger has not been amputated; amputation is neither shown, nor alleged; factors warranting extraschedular consideration are neither shown, nor alleged. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for residuals of a right wrist fracture is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Codes 5010, 5214, 5215 (2007). 2. A rating in excess of 10 percent for a right index finger disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5010- 5225 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). An August 2005 letter (prior to the decision on appeal) provided the veteran notice of evidence needed to support his claims and advised him of his and VA's responsibilities in the development of the claims. This letter also advised him to submit relevant evidence in his possession. While he was not provided prior notice regarding effective dates of awards (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)), he is not prejudiced by the timing of such notice, as the instant decision does not address any effective date matters. Regardless, a March 2006 letter provided such notice. As noted, this decision addresses claims for increased ratings. In Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), the Court found that, at a minimum, adequate VCAA notice in such cases requires that VA notify the claimant that, to substantiate such a claim (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The August 2005 VCAA letter does not contain the level of specificity set forth in Vazquez-Flores. However, the Board does not find that such procedural defect constitutes prejudicial error because the record reflects that the veteran had substantially complete actual knowledge of any information mandated by the notice requirements which was not included in the notice provided, and had ample opportunity to meaningfully participate in the adjudicatory process; he has understood what is needed to substantiate the claims. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Specifically, the veteran's statements at the September 2005 VA examination, in his April 2006 substantive appeal, and in testimony at the December 2007 Travel Board hearing reflect actual knowledge of the applicable rating criteria, and the descriptions he provided regarding the effect the disabilities have on his employability and daily life indicate an awareness on his part that such information is pertinent in substantiating a claim for a higher rating. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim. Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Finally, the October 2005 rating decision includes a discussion of the applicable rating criteria, and the criteria were set forth in further detail in the March 2006 statement of the case (SOC). As the has either received or exhibited actual knowledge of all critical information mandated by the notice requirements, and has had ample opportunity to respond and/or supplement the record after notice was given, he is not prejudiced by any technical notice timing or content defect that may have occurred earlier, nor is it otherwise alleged. Regarding VA's duty to assist, all pertinent identified treatment records are associated with the veteran's claims file, and VA has arranged for him to be examined. The veteran has not identified any pertinent evidence that remains outstanding. VA' duty to assist is met. II. Factual Background The veteran's service medical records reveal that he sustained a right wrist fracture and right index finger injury. Postservice treatment records show that in January 2001, the veteran underwent surgery on his right wrist due to a long history of scaphoid nonunion which was causing him difficulty grasping objects. H also had a volar retinacular cyst (which likewise interfered with grasping activities) removed from his right index finger. [A temporary total (convalescent) rating has been assigned following this surgery (from January 31, 2001 to March 1, 2001).] September 2005 electromyography revealed mild median nerve entrapment at the right carpal tunnel. On September 2005 VA examination, the veteran reported daily wrist pain that was about an 8 or 9 on a scale of 10. He reported that he had weakness and lack of endurance as well as instability in his right wrist. He indicated that his right wrist disability limited his ability to use his hand effectively, and that with increased use he had increased pain. Regarding the right index finger, the veteran reported intermittent pain, stiffness, and twitching. He stated that the symptoms were precipitated by increased use, and that because of the finger disability, he often dropped things. He indicated that his right hand interfered with sleep. Physical examination of the right wrist revealed no erythema or edema. There was no tenderness to palpation of the wrist joint. There was slightly decreased range of motion of the wrist joint with dorsiflexion to 50 degrees, palmar flexion to 50 degrees, radial deviation to 15 degrees, ulnar deviation to 20 degrees. The veteran did not report pain with range of motion testing. There was no additional decreased range of motion with repetitive testing. Physical examination of the right index finger revealed decreased range of motion of the DIP joint with flexion to 50 degrees, extension to 0 degrees; of the PIP joint with flexion to 100 degrees, extension to 0 degrees; and of the MCP joint with flexion to 70 degrees, and extension to 0 degrees. There was no pain reported with range of motion testing, and no additional decrease in range of motion with repetitive testing. The veteran exhibited 5/5 grip strength that was equal bilaterally. He had slightly decreased sensation at the volar aspect of the right index finger. X-rays of the right hand revealed degenerative changes in the wrist and in the right index finger. The assessment was right index finger paresthesia status post tendon repair; right index finger degenerative joint disease per x-ray; and right wrist degenerative joint disease status post fracture. In his April 2006 substantive appeal on VA Form 9, the veteran stated "I also think that my right wrist should have a higher rating. I had surgery on both the hand and wrist and it's still not right. My right index finger prevents me from engaging in some occupations. That must be more than 10 [percent]". At the December 2007 Travel Board hearing, the veteran testified that he has not missed any time from work due to his right hand disabilities (wrist and index finger). He stated that the hand would stiffen after he used his computer at work. He also testified that it was hard for him to work on his classic cars. III. Legal Criteria and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Where entitlement to compensation has already been established and increase in disability is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate in an increased-rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). On close review of the record, the Board finds that at no distinct period of time (with the exception of the convalescent period following January 2001 surgery for which a 100% rating has been assigned and which period is not at issue herein ) during the appeal period were the veteran's service connected right wrist and index finger disabilities manifested by symptoms of such nature and gravity as to warrant ratings in excess of 10 percent, each. Right wrist: At the outset it is noteworthy that the record reflects that the veteran is right hand dominant. [While the Codes under which the disabilities are currently rated provide similar ratings for the major and minor extremities, higher codes (e.g, based on amputation) may differentitate.] The current 10 percent rating assigned for the veteran's right wrist disability is under Code 5215 (for limitation of wrist motion), and is the maximum schedular rating provided on this basis (where dorsiflexion of a wrist is less than 15 degrees or when palmar flexion is limited in line with the forearm). 38 C.F.R. § 4.71a, Code 5215. Code 5214 provides for higher ratings for wrist disability where the wrist is ankylosed. 38 C.F.R. § 4.71a. [Normal wrist dorsiflexion is to 70 degrees; normal palmar flexion is to 80 degrees. 38 C.F.R. § 4.71, Plate I.] Not only is the wrist not shown, or alleged, to be ankylosed, examination found that the veteran had only slightly decreased motion of the wrist. Furthermore, there was no additional loss of function noted with repetitive testing. Right index finger: Code 5229 (which governs ratings based on limitation of motion of the index finger) provides for a maximum 10 percent rating when motion is limited to where there is a gap of one inch or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. The current 10 percent rating assigned for the right index finger disability is under Codes 5099-5010, and represents the maximum rating afforded for arthritis of the finger with painful motion. See 38 U.S.C.A. § 4.71a. Significantly, if the finger is ankylosed (and here disability of such severity is not shown), the maximum rating is also 10 percent. A higher schedular rating would only be warranted if the finger was amputated. See 38 C.F.R. § 4.71a, Code 5153. Clearly, that is not the situation in the instant case. Accordingly, the evidence does not warrant a higher schedular rating for the right index finger disability. With respect to both of these matters the Board has considered whether referral for extraschedular consideration under 38 C.F.R. § 3.321 is warranted. While the veteran has indicated in statements and in testimony that his disabilities affect some activities/hobbies, and alleges that they would preclude certain types of employment, such as policeman, he also testified that the disabilities have not caused him to miss time at work. As other factors warranting extraschedular consideration are neither shown, nor alleged, referral for extraschedular consideration is not indicated. ORDER A rating in excess of 10 percent for residuals of a right wrist fracture is denied. A rating in excess of 10 percent for a right index finger disability is denied. REMAND The veteran's service medical records reveal that he sustained a head injury in 1970. He subsequently complained of headaches intermittently throughout service. On retirement physical he complained of frequent headaches. On September 2005 VA examination, the veteran reported that since his discharge from the military he has had problems with headaches. The examiner noted that the veteran did not have any particular sequela noted at the time of his discharge examination. The assessment was benign positional vertigo, not secondary to remote history of head injury. At the December 2007 Travel Board hearing, the veteran testified that he continues to have headaches at least twice a week with a level of intensity of a six, on a scale from one to ten. He stated that headaches are the specific residuals he seeks to have service connected as a residual of head injury in service. The veteran has not been afforded a specific VA examination to determine the etiology of his current headaches. An examination/opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). That is the situation here. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for a VA neurology examination to determine the nature and likely etiology of the veteran's headaches. The examiner must review the claims file in conjunction with the examination, specifically noting service medical records which report treatment for a head injury and subsequent complaints of headaches. The examiner should provide an opinion as to whether the veteran's current headaches are at least as likely as not (i.e., a 50% or better probability) related to the head injury he sustained in service. The examiner must explain rationale for the opinion given. 2. The RO should then readjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental SOC and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs