Citation Nr: 0811942 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-25 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial staged rating in excess of 10 percent for residuals of right wrist sprain, scapholunate advanced collapse with carporadial degeneration, dominant hand, from March 1, 2004. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active military service from June 1969 to December 1970. These matters arise from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The veteran appeared before the undersigned Veterans Law Judge in March 2005 and delivered sworn testimony via video conference hearing in Indianapolis, Indiana. By rating decision in November 2002, service connection for residuals of right wrist sprain, scapholunate advanced collapse with carporadial degeneration, dominant hand, was granted with an evaluation of 10 percent, effective April 22, 2002. By rating decision in June 2004, a temporary total rating was assigned (for the right wrist disability) effective January 14, 2004 based on surgical treatment necessitating convalescence. The June 2004 rating decision denied entitlement to a TDIU, and also assigned a 10 percent rating for the right wrist disability, effective March 1, 2004. This case was previously before the Board in January 2006, and the issues on the title page of this decision were remanded for additional development. The January 2006 Board decision also denied an initial evaluation in excess of 10 percent for residuals of right wrist sprain, prior to January 14, 2004, and also denied a temporary total rating beyond February 28, 2004 for convalescence based on surgery or treatment of residuals of right wrist sprain. FINDINGS OF FACT 1. From March 1, 2004, right wrist disability is manifested by right wrist extension of 15-35 degrees, and right wrist flexion of 25-40 degrees; ankylosis and impairment of the ulna have not been shown. 2. The veteran is service-connected for lumbar spine disability, rated as 40 percent disabling; post-traumatic stress disorder (PTSD), rated as 10 percent disabling; and right wrist disability, rated as 10 percent disabling; the veteran's combined disability rating is 50 percent. 3. The veteran is not precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial staged rating in excess of 10 percent for residuals of right wrist sprain, scapholunate advanced collapse with carporadial degeneration, dominant hand, from March 1, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5214, 5215 (2007). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (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 in the instant case. Notice 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 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 to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As the November 2002 rating decision on appeal granted the veteran's claim of entitlement to service connection for right wrist disability, such claim is now substantiated. As such, the filing of a notice of disagreement as to the initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. The July 2003 statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes (DC) for the veteran's right wrist disability, and included a description of the rating formulas for all possible schedular ratings under the relevant diagnostic code. The appellant was thus informed of what was needed not only to achieve the next- higher schedular rating, but also to obtain all schedular ratings above the disability evaluation that the RO had assigned. In addition, the April 2007 supplemental statement of the case explained how a disability rating is determined by VA for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. However, because the instant decision denies the veteran's claims, no disability rating or effective date will be assigned. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this service connection appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notices. As for the issue of entitlement to TDIU, by correspondence dated in March 2004, November 2004, and January 2006 the veteran was informed of the evidence and information necessary to substantiate his TDIU claim, the information required of him to enable VA to obtain evidence in support of his TDIU 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. The VCAA letters informed the veteran that he should submit any medical evidence pertinent to his claims. VCAA notice was provided to the veteran prior to the initial adjudication. Pelegrini. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Duty to Assist The veteran's service medical records are associated with the claims file, as are VA and private medical records. The veteran's VA Vocational Rehabilitation records have also been obtained. In November 2006 the veteran underwent a VA examination that addressed the medical matters presented by this appeal. The veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. I. Right wrist Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Because the instant appeal is from the initial rating assigned with the grants of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim. Under Diagnostic Code 5010, traumatic arthritis is rated as degenerative arthritis, under Diagnostic Code 5003, based on limitation of motion of the affected joint. Under Diagnostic Code 5215, for limitation of motion of the major or minor wrist, a 10 percent rating, the maximum rating, is warranted when there is limitation of motion of the wrist with dorsiflexion less than 15 degrees or with palmar flexion limited in line with the forearm. 38 U.S.C.A. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5214, ankylosis of the wrist, a 30 percent disability evaluation is warranted when there is favorable ankylosis in 20 to 30 degrees dorsiflexion in the major wrist. A 40 percent disability evaluation is contemplated for ankylosis of the major wrist in any other position, except favorable. The Board notes that the veteran is right-hand dominant. The veteran's service-connected right wrist disability is currently rated as 10 percent disabling under the provisions of Diagnostic Code 5215, limitation of motion of the wrist. Under Diagnostic Code 5215, the maximum rating allowed for disability resulting from limitation of motion of the wrist is 10 percent. Since the veteran currently receives the maximum 10 percent rating, an increased rating under this provision is not possible. The Board has considered whether a higher rating is warranted under other diagnostic codes pertinent to the wrist. A higher rating is not warranted under Diagnostic Code 5214, ankylosis of the wrist. The record contains no objective finding of ankylosis (favorable or unfavorable); the veteran has demonstrated range of motion of the right wrist upon range of motion testing in May 2004 (15 degrees extension, 40 degrees of flexion, 10 degrees of ulnar deviation, and 20 degrees of radial deviation) and November 2006 (35 degrees extension, 25 degrees flexion, 5 degrees radial deviation, and 20 degrees ulnar deviation). As a general matter, in evaluating musculoskeletal disabilities, the VA must determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. In this regard, the Board observes that the November 2006 VA examiner noted that the veteran had intact right hand grip strength, and there was no evidence of muscle atrophy or bone loss. While reproducible fatigability with repetitive right wrist motion was noted, even when considering additional functional limitation, the competent findings do not indicate a disability picture comparable to favorable ankylosis, as is necessary in order to achieve the next-higher 30 percent evaluation under Diagnostic Code 5214. The Board has considered assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). The record does not show that the veteran's right wrist disability has required frequent hospitalization, or that manifestations of the disability exceed those contemplated by the schedular criteria. While the veteran's ability to work as a carpenter was noted to be impacted by his right wrist disability, there is no suggestion in the record that the right wrist disability has resulted in marked interference with employment beyond that contemplated in the assigned schedular rating. Therefore, assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). As the preponderance of the evidence is against a higher initial staged rating, the benefit of the doubt rule is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). II. TDIU The veteran is claiming entitlement to TDIU. In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in January 2004, the veteran indicated that he had last worked full time in January 2004. From 1998 to 2001 the veteran had been self- employed as a carpenter. He reported that he had completed high school and one year of college and had not received additional education. According to the law, entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The veteran is service-connected for lumbar spine disability, rated as 40 percent disabling; post-traumatic stress disorder (PTSD), rated as 10 percent disabling; and right wrist disability, rated as 10 percent disabling; the veteran's combined disability rating is 50 percent. As such, the veteran's service-connected disabilities do not satisfy the criteria of § 4.16(a). Nevertheless, veterans who are unable to secure and follow a substantially gainful occupation because of service-connected disabilities are to be rated totally disabled. The Board will now review the evidence of record to see if it demonstrates that the veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. A May 2004 letter located in the veteran's VA Vocational Rehabilitation records indicates that he was dropped from that program due to his failure to complete an evaluation. A May 2004 VA joints examiner noted that the veteran's back disability prevented him from lifting items exceeding ten pounds, but did not preclude him from performing desk work. A November 2006 VA examiner commented as follows: In regards to his unemployability, given this being his right-hand dominant wrist, I do feel that his ability to perform as a carpenter would be extremely difficult and I do not feel that he would be employable as a carpenter. However, given his background, I do feel that he would be able to do other types of work such as desk-type or managerial-type employment. While the veteran's service-connected disabilities clearly impact his ability to perform carpentry and jobs that involve lifting objects over ten pounds, physicians have indicated that the veteran could be employable in sedentary occupations. A review of the veteran's VA Vocational Rehabilitation records reveal that the veteran has manifested skills such as jewelry design and marketing. While manual labor positions in the construction industry may not be an option due to his lifting restriction, it appears that he has experience and abilities in related fields such as property management. The most probative evidence of record is the opinions of the VA examiners essentially stating that the veteran would be able to perform sedentary employment. While the veteran disputes the VA physician opinions concerning his employability, there is no evidence that the veteran possesses a recognized degree of medical knowledge to contradict the judgment of a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Further, no competent medical professional has opined that the veteran is unemployable due to his service-connected disabilities. The preponderance of the evidence is against the claim, and entitlement to TDIU is not warranted. (CONTINUED ON NEXT PAGE) ORDER An initial staged rating in excess of 10 percent for residuals of right wrist sprain, scapholunate advanced collapse with carporadial degeneration, dominant hand, from March 1, 2004, is denied. Entitlement to a TDIU is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs