Citation Nr: 0811743 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 99-20 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a back and cervical spine disorder, claimed as secondary to a service-connected right wrist disability. 2. Entitlement to service connection for a right shoulder disorder, also claimed as secondary to the service-connected right wrist disability. 3. Entitlement to a rating higher than 50 percent for the right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from March 1973 to March 1982. This appeal to the Board of Veterans' Appeals (Board) is from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. That decision denied service connection for right shoulder and back and cervical spine disorders and confirmed and continued a 30 percent rating for an already service- connected right wrist disability. But in a more recent May 2004 decision, during the pendency of this appeal, the RO increased the rating for the right wrist disability to 50 percent - retroactively effective from April 29, 1997, the date of receipt of the veteran's claim for a higher rating. He has since continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Board remanded this case in July 2005 for further development. In August 2007, the veteran submitted additional medical evidence without the proper waiver to allow the Board to consider this additional evidence in the first instance (i.e., without having to first again remand this case to the RO). 38 C.F.R. § 20.1304(c) (2007). So in January 2008, given the prior remand, the Board sent him a letter asking whether he wanted to waive his right to have the RO initially consider this additional evidence. His Congressional representative responded on his behalf, indicating the veteran was indeed waiving this right. Therefore, the Board may consider this newly submitted evidence and decide the claims. FINDINGS OF FACT 1. The veteran's spine and right shoulder disabilities were not caused or made chronically worse by his active military service from March 1973 to March 1982 or by his service- connected right wrist disability. 2. The veteran has severe carpal tunnel syndrome affecting his right wrist, but he does not have complete paralysis of the median nerve. CONCLUSIONS OF LAW 1. The veteran's back and cervical spine disability was not incurred in or aggravated by his military service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his already service- connected right wrist disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 2. The veteran's right shoulder disability also was not incurred in or aggravated by his military service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his already service- connected right wrist disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 3. The criteria are not met for a rating higher than 50 percent for the right wrist disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.71a, 4.124a, Diagnostic Codes (DC) 5003, 5024, 8515 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of letters dated in June 2004 and August 2005, the RO advised the veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO did not issue those VCAA notice letters prior to initially adjudicating the veteran's claims - the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). But this is because the rating decision on appeal was in September 1997, some three years before the VCAA was enacted in November 2000. Obviously then, the RO could not reasonably have been expected to comply with an Act that did not yet even exist. And in Pelegrini II, the Court clarified that in these type situations VA does not have to vitiate the prior decision and start the whole adjudicatory process anew, as if the decision was never made. Rather, VA need only ensure the veteran receives - or since has received, content-complying VCAA notice such that the essential purpose of the notice is not frustrated and he is given an opportunity to participate effectively in the adjudication of his claims. The June 2004 VCAA letter mentioned was sent prior to the June 2004 and May 2007 supplemental statements of the case (SSOCs), and the August 2005 VCAA letter was sent before the May 2007 SSOC, wherein the RO readjudicated the claims based on any additional evidence that had been received since that initial 1997 rating decision, statement of the case (SOC) and any prior SSOC. This is important to point out because the Federal Circuit Court has recently held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. Sept. 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Moreover, neither the veteran nor his representative has made any showing or allegation that the timing of the VCAA notice resulted in any prejudice to the veteran. But see Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (where the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial and that once an error is identified, the burden shifts to VA to show it was harmless). The June 2004 VCAA letter did not specifically ask the veteran to provide any evidence in his possession pertaining to his claims. Pelegrini II, 18 Vet. App. at 120-21. However, the more recent August 2005 VCAA follow up letter did make this specific request and, in any event, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). 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, 46 (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, slip op. at 5-6. Here, because the Vasquez-Flores' decision was not issued until very recently, the veteran has not received VCAA notice specifically tailored to comply with it. And, as mentioned, in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held that this type of notice error is presumed prejudicial and that it is incumbent upon VA, not the veteran, to show why the error is nonprejudicial, i.e., harmless. VA can show the error is harmless by demonstrating why it does 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, see Vazquez-Flores v. Peake, 22 Vet. App. 27, 46 (2008) ("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.") (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, 46 (2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the diagnostic criteria used to determine the relative severity of the veteran's right wrist disability were provided to him in the July 1999 SOC. A reasonable person could be expected to read and understand these criteria, and that evidence to show his disability met the requirements for a higher rating was needed for an increase to be granted. After receiving notice of the rating criteria, his claim was readjudicated in the June 2004 and May 2007 SSOCs, after additional evidence was received. So the readjudication effectively "cured" the inadequate notice or lack of notice prior to the initial adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if there arguably is any deficiency in the notice to the veteran or the timing of these notices it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. It equally deserves mentioning that, in a May 2007 letter, the veteran received the required information concerning the disability rating and effective date elements of his claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With respect to the duty to assist, the RO obtained the veteran's service medical records, VA treatment records, Social Security Administration (SSA) records, and the reports of his VA compensation examinations. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board is also satisfied as to compliance with its July 2005 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This case was remanded so the RO could obtain the veteran's SSA records. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (indicating these records are generally relevant to a claim with VA). The RO requested these records and did not receive a response. But the veteran's Congressional representative submitted a statement indicating his office had received a letter from SSA stating the favorable disability determination was based on VA medical records - which are already in the veteran's claims file. Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease that was incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Certain conditions, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical evidence do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as provided in 38 C.F.R. § 3.300(c), pertaining to secondary service connection for ischemic heart disease or other cardiovascular disease based on the effects of tobacco products, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (b), added effective October 10, 2006, 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The addition of 38 C.F.R. § 3.310(b), effective as of October 10, 2006, does not affect the consideration or outcome of this case. This new paragraph was added to implement the Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995). The holding in that case has been binding on VA since it was issued in 1995. Thus, the regulatory provisions added by 38 C.F.R. § 3.310(b) simply conform VA regulations to the Court's decision, the holding of which has been applicable during the entire period of this appeal. Back and Neck (Lumbar and Cervical Spine) and Right Shoulder Disabilities The first requirement for any service-connection claim is competent evidence of the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran has current diagnoses of spine and right shoulder disabilities, so there is no disputing he has these alleged conditions. The determinative issue, therefore, is whether these conditions are somehow attributable to his military service - including, in particular, by way of his already service-connected right wrist disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The veteran asserts that his spine and right shoulder disabilities were caused by his service-connected right wrist disability, so he is claiming secondary service connection rather than direct service connection. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Requirements (1) and (2), as mentioned, are met, and this case turns on whether requirement (3) is also satisfied. In February 2004, the veteran had a VA joints examination. He complained of right shoulder pain. The examiner diagnosed residuals of right carpal tunnel syndrome release and right rotator cuff tendonitis versus cervical radiculopathy. More importantly, this examiner indicated the veteran's right shoulder disability was not service connected because it began fifteen years after his military service ended. The examiner elaborated that carpal tunnel syndrome could be the result of cervical radiculopathy, but not the other way around. The examiner did not state or suggest that the veteran's right wrist disability caused his right shoulder disability. The veteran also had a VA spine examination in February 2004. The examiner reviewed the veteran's claims files for the pertinent medical and other history. He noted there were no spinal problems documented in the veteran's service medical records (SMRs) and no evidence of a neck problem until 1997. The veteran was diagnosed with degenerative disc disease of the cervical spine with herniated nucleus pulposus at the C5- 6 level. The examiner stated that his opinion regarding service connection was the same as his opinion regarding the veteran's cervical spine in the February 2004 VA joints examination, that is, that the disability was not service- connected or caused by the right wrist disability. As well, the veteran had a VA peripheral nerves examination in February 2004. While it was primarily for his service- connected right wrist disability, the examiner noted that the veteran had cervical radiculopathy secondary to degenerative disc disease at multiple levels. The examiner diagnosed the veteran with right cervical radiculopathy and carpal tunnel syndrome and specifically noted that the two disabilities were independent of each other, i.e., unrelated. The medical opinions obtained from these VA examinations are entitled to a lot of probative weight because they were based on an objective review of the relevant evidence in the claims file and personal clinical evaluation, not just statements or history the veteran provided. See, e.g., Elkins v. Brown, 5 Vet. App. 474, 478 (1993); Swann v. Brown, 5 Vet. App. 177, 180 (1993). These opinions are clearly unfavorable to his claims inasmuch as they expressly discount any possible relationship between his back, neck and right shoulder disorders and his already service-connected right wrist disability. The examiner noted in the report of the February 2004 VA joints examination that the veteran's cervical spine disability (especially the associated radiculopathy) could cause the right wrist disability, but not the reverse. And that is indeed the basis of the veteran's claim, that is right wrist disability precipitated his cervical spine disability, not the opposite. Other post-service records also provide evidence against establishing service connection on a secondary basis. A December 2003 VA treatment report shows the veteran complained of right-sided neck pain radiating to his right shoulder, arm, and hand. The diagnostic assessment was right C5-T1 radiculopathy secondary to central herniated nucleus pulposus at C5-6 and C6-7, and cervical degeneration at multiple levels. There is no medical evidence of record suggesting the veteran's right wrist disability caused or aggravated his cervical spine, lumbar spine or right shoulder disabilities. In fact, a December 2003 treatment report mentions that his right shoulder disability was caused by his cervical spine disability. The January 2004 favorable SSA disability determination states the veteran was disabled, beginning in January 2003, due to his cervical spine disability. However, the SSA decision does not make a finding that his cervical spine or right shoulder disabilities were caused or aggravated by this right wrist disability, referring to the carpal tunnel syndrome. Absent this required medical nexus evidence, the preponderance of the evidence is unfavorable - in turn meaning the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran does not allege, and the evidence does not otherwise suggest, that his spine and right shoulder disorders were directly or presumptively incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Rather, as indicated, these claims are entirely predicated on the notion of secondary, not direct, service connection. Whether the Veteran is Entitled to a Higher Rating for his Right Wrist Disability Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2006). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. A recent decision of the Court has held that, in determining the present level of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When an evaluation of a disability is based - at least in part, on the extent there is limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The veteran is not entitled to a higher rating under DeLuca because the maximum available evaluation for limitation of motion of the wrist is 10 percent, and he already has a much higher 50 percent rating. If, as here, a veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. See again Johnston v. Brown, 10 Vet. App. 80 (1997). The current 50 percent rating for the right wrist disability is under DC 5024-8515, for tenosynovitis and paralysis of the median nerve. 38 C.F.R. §§ 4.20, 4.71a, 4.124a. Under DC 5024, the rater is instructed to rate the disability based upon limitation of motion of the affective parts or as degenerative arthritis under DC 5003. Under DC 5003, when limitation of motion of the affected part is noncompensable, a 10 percent rating is warranted when 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 warranted where there is X-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Since, however, the veteran's 50 percent rating already far exceeds the highest possible 20 percent rating under DC 5003, he must look elsewhere to receive an even higher rating. Limitation of motion of the wrist is evaluated under DC 5215. The maximum evaluation for limitation of motion of the wrist is 10 percent. 38 C.F.R. § 4.71a. Therefore, the veteran's existing 50 percent rating already far exceeds this maximum possible evaluation, too. Under DC 8515, a 50 percent rating is warranted when there is incomplete, severe paralysis of the median nerve in the major appendage. A higher 70 percent rating requires complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. 38 C.F.R. § 4.124a. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The results of the February 2004 VA joints examination were the basis for increasing the veteran's right wrist rating from 30 to 50 percent. The examiner found the veteran's right carpal tunnel syndrome was so severe that he could only perform light work, such as office or clerical tasks. His pain was chronic, and he used a right wrist resting splint. The examiner indicated the veteran is right-handed. His right wrist dorsiflexion was limited to 35 degrees, with pain beginning at 30 degrees. He also had tenderness at the right dorsal wrist. There was no ankylosis of the wrist. X-rays of this wrist were negative. The veteran also had a VA peripheral nerves examination in February 2004. Upon examination, it was observed that he wore a right wrist brace. There was no atrophy. The examiner stated the veteran's carpal tunnel syndrome was a source of severe pain and weakness, by history. VA medical records show treatment for right carpal tunnel syndrome, but they do not provide evidence to show the veteran's right wrist disability meets the criteria for a higher 70 percent rating under DC 8515. There is no indication, for example, that he has had problems extending or flexing his fingers, that he has an "ape hand" deformity, or that he has defective opposition and abduction of the thumb. He has limitation of wrist dorsiflexion with pain, but his hand is not inclined to the ulnar side. He also does not have ankylosis, either favorable or unfavorable, meaning complete immobility and consolidation of his right wrist joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Because he has retained some range of motion in this wrist, albeit not normal range of motion, by definition it is not ankylosed. There also is no atrophy of his muscles, as noted during his February 2004 VA peripheral nerves examination. So the evidence of record does not support assigning a higher 70 percent evaluation, as the severity of the veteran's disability is most commensurate with his current 50 percent rating. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence against this claim. 38 C.F.R. § 4.3. Moreover, based upon the guidance of the Court in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the Board has considered whether a staged rating is appropriate. However, the veteran's symptoms have remained relatively constant throughout the course of his appeal and, as such, a staged rating is not warranted because he has never had more than 50 percent disability in his right wrist at any time since filing this claim or even during the one year prior. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran is receiving SSA disability payments due to his cervical spine disability (which, for the reasons and bases discussed, is unrelated to his military service). The SSA decision notes the wrist disability, but does not cite it as the reason for his unemployability. Additionally, during his February 2004 VA peripheral nerves examination, the veteran acknowledged that his cervical radiculopathy caused him to stop working, which, for the reasons and bases mentioned, has not been linked to the service-connected right wrist disability. ORDER Service connection for the back and cervical spine disorder is denied. Service connection for the right shoulder disorder is denied. The claim for a rating higher than 50 percent for the right wrist disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs