Citation Nr: 0810607 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 03-31 290 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to a rating in excess of 10 percent for a right wrist ganglion cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from November 1972 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Phoenix RO that, in part, denied a compensable rating for a right wrist ganglion cyst. A February 2006 rating decision increased the rating to 10 percent. The veteran has not expressed satisfaction with such rating, and the matter remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In July 2006 and March 2007, the matter was remanded for additional development. FINDINGS OF FACT The veteran's right wrist ganglion cyst is manifested by tenderness, pain, dorsiflexion limited to no less than 45 degrees, and plantar flexion limited to no less than 65 degrees; ankylosis is not shown. CONCLUSION OF LAW A rating in excess of 10 percent for a right wrist ganglion cyst is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5215, 5214 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the matter being addressed. 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 his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include ratings assigned and effective dates of awards). A recent Court decision held that with respect to an increased rating claim, VCAA notice must include with some specificity what evidence is needed to support the claim. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). July 2003, May 2006, and August 2006 letters (after the RO's initial adjudication of this claim) informed the veteran of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. He was also advised to submit relevant evidence in his possession, and was provided notice regarding the effective dates of awards (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)). A July 2003 statement of the case (SOC) and July 2005, February 2006, November 2006, and September 2007 supplemental SOCs (SSOCs) outlined the regulation implementing the VCAA, and notified the veteran of what the evidence showed, of the governing legal criteria, and of the bases for the denial of the claim. While the letters did not provide specific notice regarding the criteria for a higher rating for a ganglion cyst, the veteran was not prejudiced by this omission and the delay in notice of other information because the essential fairness of the adjudication process was not affected. The letters notified the veteran of factors considered in determining disability ratings and evidence that would be pertinent in establishing a rating. Furthermore, the veteran's representative demonstrated actual knowledge of the criteria for rating the veteran's disability as these criteria were set forth in the February 2008 brief. The veteran has now received all critical notice, and has had ample opportunity to respond and/or supplement the record after notice was given. The claims were thereafter readjudicated. See September 2007 SSOC. The veteran is not prejudiced by any technical notice timing or content defect that may have occurred earlier. Regarding VA's duty to assist, the RO has obtained all relevant, available medical records identified by the veteran. VA arranged for the veteran to be examined. VA's duty to assist is met. Accordingly, the Board will address the merits of this claim. II. Factual Background On April 2003 VA examination, the veteran advised that due to his ganglion cyst he had pain in his right wrist, extending up into his arm. Objectively, there was a 1 cm. cystic lesion on the right hand that was not inflamed or tender. There were no surgical scars. The examiner indicated that the veteran did not fully cooperate with the testing. There was no objective measurement of loss of function of the right wrist or hand. An April 2003 VA record notes that the veteran reported disabling wrist pain over the dorsal area, aggravated by certain positions, and that occupational therapy and wrist splints had helped somewhat. He also complained of some shooting pain from the wrist to the shoulder. Although the impression was carpal tunnel syndrome, the physician did not think that this was the only cause for the veteran's symptoms and that articular problems with the wrist and possibly the hand were also suspected. In a letter received in February 2004, a program manager at a VA compensated work therapy program stated the veteran missed several days due to hand pain and swelling. A February 2004 statement from the veteran's daughter reported that he had trouble lifting items, gripping a steering wheel, and tying his shoes. May 2003 to March 2005 VA records note that the veteran had wrist swelling with repetitive wrist motion and that he was eventually discharged from a VA work program because the heavy labor caused pain and swelling in his wrist and hand. On September 2005 VA examination, it was noted that the veteran had new and worsening carpal tunnel symptoms and was using a brace. It was also noted that the veteran had severe tenosynovitis. He reported that the brace no longer helped, and complained of wrist pain, but denied stiffness, weakness, and inflammation. Active right wrist dorsiflexion was to 70 degrees with pain beginning at 50 degrees. Active palmar flexion was to 80 degrees with pain beginning at 60 degrees. There was no evidence of additional limitation of motion with repetitive use; however, activity that required repetitive use of the hand caused significant pain. On September 2006 VA examination, the veteran reported that there had been no change in his right wrist ganglion cyst and that he wore a brace for physical labor. He complained of wrist stiffness and weakness. Active right wrist dorsiflexion was to 55 degrees with pain beginning at the end range. Passive dorsiflexion was to 70 degrees with pain beginning at 55 degrees. Pain with repetitive use limited motion to 50 degrees. Active and passive palmar flexion was to 82 degrees with pain beginning at 60 degrees. Motion was limited to 65 degrees due to pain with repetitive use. There was no evidence of ankylosis. The examiner noted a firm, soft tissue prominence on the dorsal aspect of the right wrist measuring 1.4 x 1.3 cm. On June 2007 VA examination, the veteran reported that he had progressive right wrist pain and that over the years the region of the ganglion cyst became hard. He also reported that he had right wrist symptoms that were unrelated to the ganglion cyst and they included weakness and finger numbness and tingling. He indicated that he had not worked since 1997-1998, and that other problems had contributed to his inability to work. The veteran's severe right wrist tenosynovitis was found to contribute to his severe pain, decreased wrist range of motion, and tenderness to palpation. He still wore wrist braces for any heavy lifting. Objectively, there was evidence of a firm, hard protuberance on the dorsal aspect of the right wrist that measured 1.4 x 1.4 cm. in its greatest diameter. The region was tender and dorsiflexion was limited to 45 degrees due to pain while plantar flexion was limited to 65 degrees due to pain. There was no additional limitation due to pain, weakness, fatigability, or lack of endurance with repetitive motion. The examiner commented that the veteran had symptoms of right wrist pain that limited his ability to use his wrist and that this was partially attributed to his right ganglion cyst and partially due to carpel tunnel syndrome and severe tenosynovitis. III. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran's right wrist ganglion cyst is rated by analogy to Code 5215 (based on limitation of motion of the wrist). Dorsiflexion of either wrist to less than 15 degrees or palmar flexion limited in line with the forearm warrants a maximum 10 percent rating. See 38 C.F.R. § 4.71a. As the veteran's right wrist disability is already rated at the maximum provided Code 5215, we must look to other potentially applicable codes to see if an increase under any such code is warranted. Code 5214 provides for higher ratings based on ankylosis of the wrist. 38 C.F.R. § 4.71a. Significantly, the record reflects that the veteran has fairly substantial co-existing nonservice-connected disabilities of the right wrist, including carpal tunnel and severe tenosynovitis, and that some of his wrist symptoms are due to such nonservice-connected disabilities (impairment due to co-existing nonservice-connected disability may not be considered in rating the service-connected disorder). While the record does not include a medical opinion delineating what portion of the veteran's right wrist disability is due to his service connected ganglion cyst, and what portion is related to the co-existing nonservice-connected disabilities, the absence of such opinion is not critical, because even if we were to concede that all right wrist symptoms/impairment shown are due to the service connected ganglion cyst, there would be insufficient impairment to meet the criteria for the next higher schedular rating possible (under Code 5214 for ankylosis of the wrist). Right wrist impairment of such severity simply is not shown, and Code 5214 criteria do not apply. While an increase may be granted for any distinct period during which the criteria for the next higher (30 percent) rating (for ankylosis) were met, such impairment has not been shown at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the veteran's right wrist disability is rated at the maximum schedular rating under Code 5215, the Board must also consider whether referral for extraschedular consideration (under 38 C.F.R. § 3.321) is indicated. The record does not show that disability due to the right wrist ganglion cyst has caused marked interference with employment or required frequent hospitalization, or involved any other factors of such gravity that would render the regular schedular criteria inadequate. Consequently, the Board finds that referral for extraschedular consideration is not warranted. The preponderance of the evidence is against this claim, and it must be denied. ORDER A rating in excess of 10 percent for a right wrist ganglion cyst is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs