Citation Nr: 0814358 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-24 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to service connection for right leg disability. Entitlement to service connection for low back disability. Entitlement to service connection of hepatitis C. Entitlement to an initial rating in excess of 10 percent for a left wrist disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani INTRODUCTION The veteran served on active duty from May 1976 to September 1976 and from December 1976 to December 27, 1980. He also had a period of dishonorable service from December 28, 1980, to April 1984. This is significant to the Board's decision because VA regulations provide that, if the former service member did not die in service, pension, compensation, or dependency and indemnity compensation benefits are not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a) (2007). This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2004 and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2005, the veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this hearing is of record. FINDINGS OF FACT 1. Right leg disability was not present in service and is not etiologically related to service. 2. Low back disability was not present within one year after the veteran's last date of qualifying service and is not etiologically related to service. 3. Hepatitis C was not present in service and is not etiologically related to service. 4. The veteran's left wrist disability is currently manifested by limitation of motion; the wrist is not ankylosed. CONCLUSIONS OF LAW 1. A right leg disability was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A low back disability was not incurred in or aggravated by active duty, and the incurrence or aggravation of arthritis of the low back during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Hepatitis C was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 4. The criteria for a rating in excess of 10 percent for a left wrist disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5214, 5215 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for a right leg disability, a low back disability, and hepatitis C. The veteran is also seeking a higher initial rating for his service-connected left wrist disability. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the veteran was provided adequate VCAA notice in response to his service connection claims in a letter mailed in September 2004, prior to the initial adjudication of the claims. The record also reflects that the veteran was provided appropriate notice with respect to the disability-rating and effective-date elements of his left wrist claim and his service connection claims in a March 2006 letter. Although he was not specifically informed in either letter that he should submit any pertinent evidence in his possession, he was informed of the evidence that would be pertinent and requested to submit such evidence or to provide the information and any authorization necessary for the RO to obtain the evidence on his behalf. Therefore, the Board believes that these letters put him on notice of the fact that he should submit any pertinent evidence in his possession. Although the veteran was not provided notice with respect to the disability-rating or effective-date element of the claims until after the initial adjudication of the claims, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that after the provision of the required notice and completion of all indicated development, the left wrist claim was readjudicated. There is no indication or reason to believe that the ultimate decision of the RO would have been different had complete VCAA notice been provided at an earlier time. Moreover, as explained below, the Board has determined that service connection is not warranted for a right leg disability, low back disability, or hepatitis C. Consequently, no disability rating or effective date will be assigned. Therefore, the failure to provide timely notice with respect to these elements of the claims is no more than harmless error. The record reflects that the veteran's service medical records have been obtained, as have post-service treatment records. The veteran has also been afforded appropriate VA examinations. Neither the veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate any of his claims. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the RO were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2007). 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. §§ 3.321(a), 4.1 (2007). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion of the minor or major wrist warrants a 10 percent rating if dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Ankylosis of the minor wrist warrants a 40 percent evaluation if it is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. Ankylosis in any other position, except favorable, warrants a 30 percent evaluation. Favorable ankylosis in 20 to 30 degrees of dorsiflexion warrants a 20 percent evaluation. Extremely unfavorable ankylosis will be rated as loss of use of the hands under diagnostic code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis Service Connection for Right leg and Low Back Disabilities The veteran claims that his current right leg and back disabilities are etiologically related to his fall into a manhole during service. Service medical records show that the veteran was seen following a fall into a manhole in January 1980, but the X-ray taken at the time was normal. Service medical records show that in June 1980, the veteran complained of back pain and related pain upon urination. Besides this record, there is no other record showing complaints of back or leg pain during service. Post-service medical evidence of record initially shows complaints of right leg pain in August 2005, more than 20 years after the veteran's discharge from his last honorable period of service. In February 2006, the veteran was afforded a VA examination. The veteran reported to the examiner that he had stepped into a manhole during service which caused his right leg and back disabilities. The veteran noted that he did not have symptoms until the 1990's when he began having numbness of his right leg and pain in his back. The veteran reported that after service he worked as a trucker and handled his load, which involved a great deal of heavy lifting, pushing or pulling. The examiner diagnosed the veteran with lumbar radiculopathy and opined that it was the likely cause of both his back pain and all of his current leg symptoms. The examiner further opined that given the absence of any significant symptoms between the 1980 injury and the early 1990's, it is much more likely that his back condition is due to the heavy lifting that occurred on his job as a trucker. He reiterated that it is less than 50 percent likely that his current symptoms are due to the 1980 injury to his lower leg. The veteran later denied having to do any heavy lifting as a truck driver. Although the examiner based some of this opinion on this fact, the examiner also clearly based his opinion on the fact that the veteran did not report having significant symptoms between 1980 and the early 1990's. Therefore, even if the veteran did not do any heavy lifting as a trucker, the Board still finds the VA examiner's opinion to be persuasive. In essence, the evidence of a nexus between the current back and leg disabilities and the veteran's military service is limited to the veteran's own statements. This is not competent evidence of the alleged nexus since laypersons, such as the veteran, are not qualified to render an opinion concerning diagnosis or medical causation. See Espiritu, 2 Vet. App. at 494. Accordingly, these claims must be denied. Service Connection for Hepatitis The veteran does not contend nor is there any medical evidence that shows or suggests that hepatitis C was present in service. Rather, the veteran testified that he contracted hepatitis C from having been inoculated with an air gun in service. VA treatment records show that the veteran is currently diagnosed with hepatitis C. In a February 2006 VA examination, the veteran denied any intravenous drug use, homosexual activity, excessive heterosexual activity or any exposure to blood or body fluids, including transfusions, while on active duty or otherwise. The veteran did report getting a tattoo and having an ear pierced prior to his military service. The examiner opined that there was no evidence present to suggest that this infection occurred during the veteran's military service. He further noted that the airgun immunization history is not a likely source of this infection. He concluded that it was less than 50 percent likely that the hepatitis C infection occurred during his military service. There is no medical evidence of record that relates the veteran's hepatitis C to his airgun immunization. In essence, the evidence of a nexus between the veteran's claimed disability and his military service is limited to the veteran's own statements. As noted above, as a lay person, the veteran is not competent to render an opinion concerning medical causation. Id. As such, the Board finds that service connection is not warranted for hepatitis C. Initial Rating for Left Wrist Disability In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability, except as noted below. The veteran's left wrist disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2007). The veteran and the veteran's representative contend that the symptomatology associated with the veteran's left wrist disability is more severe than is contemplated by the currently assigned rating due to the veteran's pain in his wrist. The veteran is currently in receipt of the maximum evaluation authorized for limitation of motion of the minor wrist without ankylosis. In a December 2004 outpatient treatment record, it was noted that the veteran complained of wrist pain. In March 2005, the veteran requested a soft wrist brace for his left wrist due to pain in his left wrist. In October 2005, his left wrist was examined by a VA physician and surgery was discussed. The wrist was swollen. The veteran was afforded a VA examination in July 2005. The veteran reported locking, weakness, limited motion and stiffness of his left wrist. The veteran reported that he was right-handed. He reported that he takes pain medicine for wrist pain. Dorsiflexion was to 36 degrees, with pain at 20 degrees. Ulnar deviation was to 40 degrees, with pain at 20 degrees. No inflammatory arthritis was found and the wrist was not ankylosed. Grip strength was absent but the examiner noted that he could not explain the total lack of grip strength considering the motor strength for flexion, extension, adduction and abduction of the fingers and thumb was 5/5. In February 2006, the veteran was afforded another VA examination. The veteran reported that he was not taking any pain medication for his left wrist disability. The examiner found a slight deformity of the wrist in the form of an apparently malaligned distal radial head. There was tenderness in this region. Range of motion was limited to 30 degrees of extension, 45 degrees of flexion, about 5 degrees of radial deviation and 40 degrees of ulnar deviation with pain at extremes. The veteran reported wearing a splint most the time and that it helped to minimize his symptoms. The examiner found the veteran to have an old missed fracture of the left wrist, leading to malunion and likely arthritis. The examiner found that the veteran did not have additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use. The veteran also submitted a May 2006 private treatment record. The record shows that the veteran complained that his wrist occasionally locks-up. The physician found swelling over the dorsal radial aspect of the radiocarpal joint and mild tenderness in this area. Flexion was to 35 degrees and extension was 45 degrees. Radial deviation was painful. The wrist strength was decreased due to pain. The physician stated that the X-ray showed degenerative arthritis at the radioscaphoid joint. The physician diagnosed the veteran with scaphoid nonunion advanced collapse of the left wrist. Although the veteran has complained of left wrist pain, the veteran still retains useful motion of his wrist. Since the wrist is not ankylosed, a higher rating under Diagnostic Code 5214 is not warranted. In so concluding, the Board has considered all pertinent disability factors. The evidence does show that the veteran experiences functional impairment as well as limitations on his activities of daily life and employment due to his left wrist disability. See 38 C.F.R. § 4.40 and 4.45. The veteran is right-hand dominant and earns his living as a truck driver. During his VA examination in June 2005, the VA examiner found that grip strength was absent in the left hand but the examiner noted that he could not explain the total lack of grip strength considering the motor strength testing of flexion, extension, adduction and abduction of the fingers and thumb were 5/5. There was also objective evidence of pain on motion during all of the VA examinations. In the most recent VA examination, the examiner found that the veteran does not have additional limitation of pain, fatigue, weakness, or lack of endurance following repetitive use. Also in this examination, the veteran reported that he was able to accomplish all activities of daily living without impairment, and he is still employed as a truck driver and able to do the job but with frequent pain. The Board finds that the pain is already contemplated under the currently assigned rating. The Board acknowledges the veteran's complaints of pain; however, the evidence shows that despite his disability, the veteran is still able to function and use his wrist on a daily basis. In sum, when all pertinent disability factors are considered, the evidence clearly establishes that the veteran retains useful motion of his wrist and therefore is not entitled to a higher evaluation on the basis of ankylosis. The Board has also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no other section that provides a basis upon which to assign a higher disability evaluation or separate compensable evaluation for the disability. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505; Fenderson v. West, 12 Vet. App. 119 (1999). In summary, for the reasons and bases expressed above, the Board has concluded that the veteran is not entitled to more than a 10 percent schedular rating for his left wrist disability for any portion of the initial rating period. The Board has also considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required frequent hospitalizations for the service-connected disability and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by a 10 percent evaluation. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. ORDER Service connection for a right leg disability is denied. Service connection for a low back disability is denied. Service connection for hepatitis C is denied. Entitlement to a higher initial rating for a left wrist disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs