Citation Nr: 0811689 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-09 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased (compensable) rating for the service-connected residuals of right navicular fracture. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from January 1960 to January 1963. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied an increased (compensable) rating for the service-connected residuals of a right navicular fracture. FINDINGS OF FACT 1. The service-connected residuals of a right navicular fracture include pain and decreased grip strength with MRI evidence of numerous cystic changes and edema involving the carpal bones and the ulnar styloid, and moderate tenosynovitis of the flexor carpi radialis. 2. Ankylosis of the right wrist is not demonstrated, but motion of the right wrist is limited by pain to 40 degrees of flexion, 30 degrees of extension, 5 degrees of radial deviation and 10 degrees of ulnar deviation with additional fatigue and lack of endurance on repeated motion. CONCLUSION OF LAW The criteria are met for the assignment of a 10 percent rating, but no higher, for the service-connected residuals of a right navicular fracture. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5003, 5024, 5214, 5215 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The RO provided the appellant pre-adjudication notice by letter dated May 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. The notification did not advise the veteran of the laws regarding degrees of disability or effective dates for any grant of service connection. A subsequent notice was sent to the veteran in March 2006 that substantially complied with the holding in Dingess and then the claim was readjudicated in a July 2007 supplemental statement of the case. Nor did the notices provided specifically comply with the holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit held in Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007), that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; "Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The notice error in this case did not affect the essential fairness of the adjudication because VA has obtained all relevant evidence and the appellant has demonstrated actual knowledge of what was necessary to substantiate the claim. Specifically, a review of the appellant's representative's VA Form 636, Statement of Accredited Representative in Appealed Case, received in February 2008, shows that the submission was filed subsequent to the February 2006 Statement of the case, followed by a July 2007 Supplemental Statements of the Case, which listed all of the relevant criteria for an increased rating. The appellant's brief discussed the most recent medical findings regarding the right wrist, to include his pain, and specifically referred to 38 C.F.R. §§ 4.20 and 4.45, noting that functional loss due to pain should be considered in the rating. Additionally, the veteran noted in his March 2006 VA Form 9 that he was not disputing the fact that he could move his wrist; but rather, asserted that an increase was warranted based on painful motion. These actions by the veteran and his representative indicate actual knowledge of the right to submit additional evidence and of the availability of additional process. As both actual knowledge of the veteran's procedural rights, and the evidence necessary to substantiate the claim have been demonstrated and he, and those acting on his behalf, have had a meaningful opportunity to participate in the development of his claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Increased Ratings The veteran seeks an increased rating for the service- connected residuals of a right navicular fracture. The right wrist disability has been rated as noncompensable since the initial grant of service connection effective August 1998. The veteran's current claim on appeal was submitted in March 2004. In support of his claim for increase, the veteran contends that his right wrist pain has worsened over the years, and has caused decreased grip strength and fatigue with repeated use. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The residuals of the veteran's right navicular fracture are evaluated as 0 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215. That code, which pertains to limitation of motion of the wrist, provides for a single 10 percent rating for the major or minor wrist if palmar flexion is limited in line with the forearm or dorsiflexion is less than 15 degrees. Other potentially applicable Diagnostic Codes include 38 C.F.R. §§ 4.71a, Diagnostic Code 5003 (arthritis) 5024 (tenosynovitis) and 5214 (wrist ankylosis). The rating schedule instructs that tenosynovitis shall be rated based on limitation of motion of affected part, as arthritis, degenerative. The criteria pertaining to degenerative arthritis under Diagnostic Code 5003 instruct to rate degenerative arthritis established by X-ray findings on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. These ratings may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the wrist is: dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. Under 38 C.F.R. § 4.71a, Diagnostic Code 5214, a 20 percent evaluation is warranted for favorable ankylosis of a minor wrist in 20 degrees to 30 degrees of dorsiflexion. The medical evidence of record shows that the veteran has limited motion of the right wrist, albeit noncompensable under Diagnostic Code 5215. Examination in June 2004 revealed tenderness over the navicular area of the right (non-dominant) wrist. He flexed the wrist to 20 degrees with pain, extended to 20 degrees with pain. Full pronation and supination of the wrist was possible, without pain. He had pain on movement of the thumb metacarpal. He had pain on radial deviation and ulnar deviation with a 50 percent loss of movement of the radial and ulnar deviation. Radial deviation was 5 degrees and ulnar deviation was 15 degrees. A May 2005 VA hand surgery consultation noted some tenderness in the thenal eminence of his right hand. He had a positive Finkelstein's test, which perfectly reproduced his symptoms. He also had a positive compression test, which caused some pain and achiness in the thenar eminence of his hand. The examiner opined that the veteran's symptoms and physical findings were most consistent with De Quervain's tenosynovitis. He also likely had a component of carpal tunnel syndrome with was causing his thenar pain, although that pain was not severe. Similar to the June 2004 VA examination and the May 2005 hand surgery consultation findings were the findings at the most recent VA examination in May 2007. The veteran continued to complain of pain and difficulty with grasping and lifting. On examination, there was pain and tenderness over the navicular bone and pain on the right radial and ulnar deviation. During a flare-up, which reportedly occurred approximately twice per week, he was unable to grasp, grip or do any fine manipulation or lifting. A surgical scar was noted from a previous cyst removal. Tinel's sign was positive. The veteran could extend the wrist to 50 degrees, but pain began at 30 degrees. The veteran could flex the right wrist to 50 degrees with pain beginning at 40 degrees. Pain, lack of endurance, and fatigue were reported with repeated flexion and extension. Radial deviation was 0-10 degrees with pain beginning at 5 degrees. Ulnar deviation was from 0-15 degrees with pain beginning at 10 degrees. There was pain, lack of endurance and fatigue reported with ulnar and radial deviations. Additionally, the veteran was able to approximate his right thumb with all other fingers with pain and lack of endurance. Importantly, the examiner opined that the veteran's current right wrist pain was due to his service-connected injury. Based on the ranges of motion of the right wrist as measured on VA examinations of record, the criteria are not met for the assignment of a compensable (10 percent) rating under 38 C.F.R. § 4.71, Diagnostic Code 5215. Even considering pain on motion, flexion of the right wrist is not limited in line with the forearm and dorsiflexion is not less than 15 degrees. Thus a compensable rating under Diagnostic Code 5215 is not warranted. Likewise, ankylosis is not shown; thus, a compensable rating under Diagnostic Code 5214 is not appropriate. The veteran has a diagnosis of tenosynovitis of the right wrist. Tenosynovitis is to be rated by analogy to arthritis under Diagnostic Code 5003. A March 2007 x-ray report was negative for a finding of arthritis. Although there is no x- ray evidence of arthritis per se, an August 2005 MRI report reveals that there is definite impairment of the right wrist, including numerous cystic changes and edema involving all carpal bones and the ulnar styloid, as well as moderate tenosynovitis of the flexor carpi radialis and mild extensor tenosynovitis. Thus, the veteran's complaints of pain on motion, and the diagnosis of tenosynovitis, are supported by objective findings of swelling, or edema, on MRI. Additionally, the veteran's limitation of motion of the right wrist is further limited by pain, lack of endurance, and fatigue. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. When a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered, and examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These factors do not specifically relate to muscle or nerve injuries independent of each other, but rather, refer to overall factors, which must be considered when rating the veteran's joint injury. DeLuca. Although the Board is required to consider the effect of the veteran's pain when making a rating determination, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. Given the veteran's complaints of pain on motion, the objective findings on magnetic resonance imaging (MRI) that support the veteran's complaints of pain, and the noted lack of endurance, weakness, and fatigue on repeated motion, the overall disability picture in this case warrants the assignment of a 10 percent rating based on noncompensable limitation of motion, a diagnosis of tenosynovitis, and MRI findings supporting the veteran's assertions of pain on motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5215. The competent evidence supports the assignment of a 10 percent rating, but no higher for the veteran's service- connected right navicular fracture residuals. The criteria for the assignment of this 10 percent rating, but no higher, have been met during the entire appeal period, as there are no distinct time periods where the veteran's symptoms warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A 10 percent rating, but no higher, is granted for the service-connected residuals of a right navicular fracture, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs