Citation Nr: 0814562	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  05-29 360	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, 
Alaska


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for 
a ganglion cyst of the right wrist, with degenerative changes 
of the first metacarpophalangeal and first carpometacarpal 
joints.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The veteran served on active duty from February 1983 to 
February 2003.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision entered in May 2004 
by the Department of Veterans Affairs (VA) Regional Office 
(RO) in Anchorage, Alaska, granting entitlement of the 
veteran to service connection for a ganglion cyst of the 
right wrist and assigning a 0 percent schedular evaluation 
therefor, effective from March 1, 2003.  The RO by subsequent 
action in July 2005 increased the initial schedular rating 
from 0 percent to 10 percent, effective from March 1, 2003, 
with recharacterization of the disability in question to that 
of a ganglion cyst of the right wrist and associated 
degenerative changes of the first metacarpophalangeal and 
first carpometacarpal joints.  Subsequent actions by and on 
behalf of the veteran indicate that the July 2005 
determination was not fully satisfactory to the veteran in 
terms of the initial rating assigned.  

The issue of the veteran's entitlement to an initial 
extraschedular rating in excess of 10 percent for a ganglion 
cyst of the right wrist is REMANDED to the RO via the VA's 
Appeals Management Center (AMC) in Washington, DC.  VA will 
notify the appellant if further action on his part is 
required.


FINDINGS OF FACT

From March 1, 2003, to the present, the veteran's service-
connected ganglion cyst of the right wrist, with degenerative 
changes of the first metacarpophalangeal and first 
carpometacarpal joint, was manifested by subjective 
complaints of pain and some limitation of motion, but without 
an objective showing of ankylosis or pain or functional loss 
leading to a further reduction in range of motion.  


CONCLUSION OF LAW

From March 1, 2003, to the present, the schedular criteria 
for the assignment of an initial or staged schedular rating 
in excess of 10 percent for a ganglion cyst of the right 
wrist, with degenerative changes of the first 
metacarpophalangeal and first carpometacarpal joints, have 
not been met.  U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 
4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 
5003, 5020, 5215 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. 
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a 
duty to provide an appropriate claim form, instructions for 
completing it, and notice of information necessary to 
complete the claim if it is incomplete.  38 U.S.C.A. § 5102; 
38 C.F.R. §  3.159(b)(2).  Second, VA has a duty to notify 
the appellant of the information and evidence needed to 
substantiate and complete a claim, notice of what part of 
that evidence is to be provided by the claimant, and notice 
of what part VA will attempt to obtain for the claimant.  38 
U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 
373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 
(2002).  Third, VA has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim.  This 
assistance includes obtaining all relevant evidence 
adequately identified in the record, and in some cases, 
affording VA examinations.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159.  Finally, VA has a duty to notify the appellant that 
he or she should submit all pertinent evidence in his 
possession.

During the pendency of this appeal, a decision was entered by 
the United States Court of Appeals for Veterans Claims 
(Court) in the consolidated appeal of Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include: 1) Veteran's status; 2) 
existence of disability; 3) a connection between the 
veteran's service and the disability; 4) degree of 
disability; and 5) effective date of the disability.  The 
Court held that the VCAA notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  

For an increased-compensation claim, 38 U.S.C.A. § 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 (DC) 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 DCs, 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.  Id. 

In this case, the Board finds that there is no issue as to 
providing an appropriate application form or completeness of 
the application.  Written notice of the information and 
evidence needed by the veteran-appellant to substantiate and 
complete his claim for service connection for a ganglion cyst 
of the right wrist, notice of what part of that evidence is 
to be provided by the claimant, and notice of what part VA 
will attempt to obtain for the appellant was provided to him 
through the RO's VCAA letter of October 2003.  The appellant 
was thereby notified that he should submit all pertinent 
evidence in his possession.  The record further reflects that 
the veteran was advised of the Court's holding in 
Dingess/Hartman by the RO's letter of March 2006 to him.

Here, the veteran is challenging the initial evaluation 
and/or effective date assigned following the grant of service 
connection.  In Dingess, the Court held that in cases where 
service connection has been granted and an initial disability 
rating and effective date have been assigned, the typical 
service-connection claim has been more than substantiated, it 
has been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled.  Id. at 490-91.  Thus, 
because the notice that was provided before service 
connection was granted was legally sufficient, VA's duty to 
notify in this case has been satisfied.

VCAA notice is to be furnished to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  Here, the initial VCAA notice letter was prepared 
and furnished to the veteran-appellant prior to the RO's 
initial decision as to the grant of service connection and 
the assignment of the initial rating and effective date, in 
accord with Pelegrini.  Notice of the holding in Dingess-
Hartman was furnished subsequent to the initial adjudication 
of such claim.  

Where, as here, the VCAA notice is defective, the Board must 
presume that the error was prejudicial, and VA bears the 
burden of rebutting said presumption.  Sanders v. Nicholson, 
487 F.3d 881 (2007) (recognizing that "VCAA notice errors 
are reviewed under a prejudicial error rule" and holding 
that "all VCAA notice errors are presumed prejudicial and . 
. . VA has the burden of rebutting this presumption"); see 
also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), 
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In Sanders, the Federal Circuit 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) is presumed prejudicial and that once an 
error is identified by the Veterans Court (Court of Appeals 
for Veterans Claims), the burden shifts to VA to demonstrate 
that the error was not prejudicial.  The Federal Circuit 
reversed the Court of Appeals for Veterans Claims' holding 
that an appellant before the Court has the initial burden of 
demonstrating prejudice due to VA error involving: (1) 
providing notice of the parties' respective obligations to 
obtain the information and evidence necessary to substantiate 
the claim: (2) requesting that the claimant provide any 
pertinent evidence in the claimant's possession; and (3) 
failing to provide notice before a decision on the claim by 
the agency of original jurisdiction.  

An error "whether procedural or substantive, is prejudicial 
when [it] affects a substantial right so as to injure an 
interest that the statutory or regulatory provision involved 
was designed to protect such that the error affects 'the 
essential fairness of the [adjudication].'"  Mayfield, supra, 
at 116; accord Sanders.  That is, "the key to determining 
whether an error is prejudicial is the effect of the error on 
the essential fairness of the adjudication."  Id.  "[A]n 
error is not prejudicial when [it] did not affect 'the 
essential fairness of the [adjudication],'" Mayfield, supra, 
at 121, and non-prejudicial error may be proven by a showing 
that "the purpose of [VCAA] notice was not frustrated, e.g., 
by demonstrating: (1) that any defect was cured by actual 
knowledge on the part of the claimant, (2) that a reasonable 
person could be expected to understand from the [defective] 
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.  
accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) 
(determining that no prejudicial error to veteran resulted in 
defective VCAA notice when the veteran, through his counsel, 
displayed actual knowledge of the information and evidence 
necessary to substantiate his claim).  Accordingly, "there 
could be no prejudice if the purpose behind the notice has 
been satisfied . . . that is, affording a claimant a 
meaningful opportunity to participate effectively in the 
processing of [the] claim. . . ."  Mayfield, supra, at 128.

To show that the error did not affect the essential fairness 
of the adjudication, VA must demonstrate 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, per Vazquez-Flores ("(a)ctual 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, supra.  

The record in this instance demonstrates that full VCAA 
notice was effectuated prior to the issuance of the final 
supplemental statement of the case by the AMC in July 2007.  
See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) 
(validating the remedial measures of issuing fully compliant 
VCAA notification and readjudicating the claim in the form of 
a supplemental statement of the case to cure timing of a 
notification defect).  More timely VCAA notice would not have 
operated to alter the outcome of the issue on appeal, in view 
of the fact that the record does not identify a factual 
predicate for entitlement to an initial schedular rating in 
excess of 10 percent for the disorder in question from March 
1, 2003, to the present.  Sanders, supra (recognizing that 
"a demonstration that the outcome would not have been 
different in the absence of the error would demonstrate that 
there was no prejudice").  In view of the foregoing, the 
Board cannot conclude that any defect in the timing of the 
notice provided affected the essential fairness of the 
adjudication, and, thus, the presumption of prejudice is 
rebutted.  Id.

It is also pertinent to note that Vazquez-Flores involved a 
claim for an increased rating whereas this case concerns the 
propriety of an initial evaluation, rather than a claimed 
increase in an existing evaluation.  Since the issue in this 
case is downstream from that of service connection (for which 
a VCAA letter was duly sent in October 2003), according to 
VAOPGCPREC 8-2003 (Dec. 22, 2003), another VCAA notice is not 
required.  Moreover, in terms of the Vazquez-Flores 
requirements, the record reflects that the RO has directly 
advised the veteran that, because he is already rated at the 
10 percent level, any rating in excess thereof would 
necessitate a showing of pain and functional loss resulting 
in additional limitation of motion, or of ankylosis of the 
right wrist.  The veteran has acknowledged his receipt of 
this information and the allegations he advances are 
reflective of the applicable rating criteria, to include 
those involving pain and limitation of motion.  

In view of the foregoing, the Board cannot conclude that 
prejudice would result to the appellant were the Board to 
enter a final decision as to his claim for a higher initial 
or staged rating for his right wrist disability.  See Bernard 
v. Brown, 4 Vet. App. 384 (1993).  

Finally, all pertinent examination and treatment records have 
been obtained and made a part of the appellant's claims 
folder to the extent that such records have been adequately 
identified or are otherwise available.  Notice is taken that 
the evidence of record includes various medical records 
compiled since the veteran's retirement from active service, 
in addition to reports of two VA medical examinations 
afforded the veteran in connection with the instant appeal.  
Findings from the VA medical examinations are sufficiently 
detailed and comprehensive in scope so as to permit the Board 
to fairly and accurately rate the disability in question.  To 
that end, the Board may proceed to adjudicate the merits of 
the claims for increase, without further remand as to those 
matters.  38 C.F.R. §§ 3.326, 3.327. 

In view of the foregoing, the Board finds that VA has 
satisfied its duties under the VCAA.  

Merits of the Claim

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  Separate DCs identify the various 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each 
disability must be viewed in relation to its history and 
there must be emphasis upon the limitation of activity 
imposed by the disabling condition.  38 C.F.R. § 4.1.  
Examination reports are to be interpreted in light of the 
whole recorded history, and each disability must be 
considered from the point of view of the appellant working or 
seeking work.  38 C.F.R. § 4.2.  Where there is a question as 
to which of two disability evaluations shall be applied, the 
higher evaluation is to be assigned if the disability picture 
more nearly approximates the criteria required for that 
rating. Otherwise, the lower rating is to be assigned.  38 
C.F.R. § 4.7.

By rating action in May 2004, the RO granted entitlement of 
the veteran to service connection for a ganglion cyst of the 
right wrist, for which a 0 percent evaluation was assigned 
under DC 5020, effective from March 1, 2003.  A timely appeal 
as to the rating then assigned was initiated by the veteran 
and later perfected within the time limits prescribed by law.  
See Fenderson v. West, 12 Vet. App. 119 (1999) (at the time 
of initial rating, separate or "staged" ratings may be 
assigned for separate periods of time based on the facts 
found).  By subsequent action of the RO in July 2005, the 
schedular evaluation was increased from 0 percent to 10 
percent under DC 5020, effective from March 1, 2003, with the 
grant of service connection being expanded to include 
degenerative changes of the first metacarpophalangeal and 
first carpometacarpal joints.  

DC 5020 provides that synovitis is to be rated on limitation 
of motion of affected parts, as degenerative arthritis.  

Degenerative arthritis is rated in accordance with 38 C.F.R. 
§ 4.71a, DC 5003, which provides that when arthritis is 
established by X-ray findings it will be rated on the basis 
of limitation of motion under the appropriate DCs for the 
specific joint or joints involved.  Where the limitation of 
motion of the specific joint involved is noncompensable under 
the appropriate DCs, a 10 percent rating is for application 
for each such major joint or group of minor joints affected 
by limitation of motion, to be combined, not added, under DC 
5003.  

DC 5215 provides for a 10 percent rating for limitation of 
motion of the wrist where dorsiflexion is less than 15 
degrees or where palmar flexion is limited in line with 
forearm.  38 C.F.R. § 4.71a, DC 5215.  No evaluation in 
excess of 10 percent is for assignment under DC 5215.

For VA purposes, normal dorsiflexion of the wrist is from 0 
to 70 degrees, and normal palmar flexion is from 0 to 80 
degrees.  Normal ulnar deviation of the wrist is from 0 to 45 
degrees, and normal radial deviation is from 0 to 20 degrees. 
38 C.F.R. § 4.71, Plate I (2007).  The DCs pertaining to 
impairment of the elbow, forearm, wrist, hand, and fingers 
apply different disability ratings based upon whether the 
major or minor arm is affected.  38 C.F.R. § 4.71a, DCs 5213 
through 5230.  

Under DC 5214, a 50 percent rating is assigned for ankylosis 
of the major wrist when ankylosis is unfavorable, in any 
degree of palmar flexion, or with ulnar or radial deviation.  
A 40 percent rating is assigned for ankylosis of the major 
wrist when there is ankylosis in any other position except 
favorable. A 30 percent rating is assigned for ankylosis of 
the major wrist that is favorable in 20 degrees to 30 degrees 
dorsiflexion.  Extremely unfavorable ankylosis will be rated 
as loss of use of the hands under DC 5125.  38 C.F.R. 
§ 4.71a, DC 5214.

Regardless of the criteria, when assigning a disability 
rating it is necessary to consider functional loss due to 
flare-ups, fatigability, incoordination, and pain on 
movement.  See DeLuca v. Brown, 8 Vet. App. 202, 206-7 
(1995).  Under 38 C.F.R. §§ 4.40 and 4.45, the rating for an 
orthopedic disorder must reflect functional limitation which 
is due to pain, as supported by adequate pathology and 
evidenced by the visible behavior of the claimant undertaking 
the motion.  Weakness is also as important as limitation of 
motion, and a part which becomes painful on use must be 
regarded as seriously disabled.  A little used part of the 
musculoskeletal system may be expected to show evidence of 
disuse, either through atrophy, the condition of the skin, 
absence of normal callosity, or the like.

Allegations are advanced by the veteran that he is bothered 
by constant pain of the right wrist, to include upon movement 
or motion, which necessitates the wearing of a splint on 
occasion, and that there is limited movement of his right 
wrist joint.  

Despite the veteran's allegations, it was noted at the time 
of a VA medical examination in November 2003 that his 
ganglion cyst of the right wrist was not restricting motion.  
In April 2005, the veteran sought medical assistance from a 
service department facility for chronic right wrist pain, 
with examination showing tenderness of the snuff box and 
scapholunate, positive grinding, normal range of motion, and 
no swelling or tenderness.  Muscle strength was 5/5 and 
sensation was found to be intact.  X-rays revealed minimal 
degenerative changes at the first metacarpophalangeal and 
first carpometacarpal joints.  Use of a cock-up splint for 
two to three weeks was prescribed.  

Subsequent medical treatment for right wrist complaints is 
not shown by the record.  

On a VA examination in March 2006, there was no obvious 
deformity of the right hand and no edema, bruising, or 
redness was shown.  Well-healed scarring about the right 
wrist was present from an in-service procedure for removal of 
a ganglion cyst, and there was good grip and finger strength 
to resistance.  His neurovascular status was judged to be 
intact.  Evidence of incoordination, weakness, or fatigue 
with repetitive motion was absent.  There was tenderness over 
the ulna and approximately seven centimeters above ulna, as 
well as over the snuff box.  Wrist dorsiflexion was from 0 to 
40 degrees; palmar flexion was from 0 to 50 degrees; radial 
deviation was from 0 to 20 degrees, with a complaint of pain 
in the snuff box region; and ulnar deviation was from 0 to 35 
degrees.  X-rays demonstrated no significant abnormality of 
the right wrist.  In the opinion of the examiner, findings on 
examination and history were compatible with tendonitis or 
strain.  No functional loss, incoordination, weakness, 
fatigue, or pain with repetitive motion was found.  Only 
subjective tenderness was noted to be present in the area of 
the right wrist.  

Evidence on file discloses the existence of limitation of 
motion of the veteran's right wrist in association with 
degenerative arthritis; however, the degree to which right 
wrist motion is limited is noncompensable under DC 5215.  
Under DC 5003, a 10 percent rating is for assignment where 
the limitation of motion of the specific joint or joints 
involved is noncompensable under the appropriate DCs, a 
rating of 10 percent is for application for each such major 
joint or group of minor joints affected, as is the case here.  
See also 38 C.F.R. § 4.59 (2007); Lichtenfels v. Derwinski, 1 
Vet. App. 484, 488 (1991).  Under the facts of this case, 
where there is demonstrated to be limitation of motion, DC 
5003 does not provide a basis for assignment of a schedular 
evaluation in excess of 10 percent.  Moreover, the presence 
of ankylosis is not objectively indicated, such as might 
warrant the assignment of a higher schedular evaluation under 
DC 5214.  The maximum rating for limitation of motion of a 
major or minor wrist is 10 percent.  38 C.F.R. § 4.71a, 
Diagnostic Code 5215.  In all, the record fails to document a 
basis for the assignment of an initial or staged schedular 
rating greater than 10 percent at any time from March 1, 
2003, to the present.  Fenderson, supra.  

As to whether any further increase might be in order on 
38 C.F.R. §§ 4.40, 4.45 and DeLuca, the Board notes that 
there was a showing on one occasion in April 2005 of 
diagnosis of chronic right wrist pain, but a wrist splint was 
prescribed at that time, and subsequent treatment for 
continued pain is not otherwise documented by the record.  As 
well, only subjective complaints of pain were set forth at 
the time of the VA's most recent examination in March 2006, 
and there was at that time no objective evidence of pain or 
painful motion or clinical finding or opinion regarding 
functional loss, incoordination, weakness, fatigue, or pain 
with repetitive motion.  Moreover, the veteran's right wrist 
pain is contemplated in the assignment of the current 10 
percent rating and the provisions of 38 C.F.R. §§ 4.40 and 
4.45 cannot support a higher rating because the Court of 
Appeals for Veterans Claims has held that there is no basis 
for a rating higher than the maximum scheduler rating for 
additional limitation of motion due to pain or functional 
loss under these provisions. See 38 C.F.R. § 4.71a, 
Diagnostic Code 5214; VAOPGCPREC 36- 97; Johnston v. Brown, 
10 Vet. App. 80, 85 (1997).  Thus, there is no basis to 
support an initial or staged rating in excess of 10 percent 
for the veteran's right wrist disability under the DeLuca, 
supra.

For the reasons stated above, the Board finds that denial of 
the veteran's claim for an initial schedular rating in excess 
of 10 percent for a right wrist disorder is required and 
there is no basis for application of the benefit-of-the-doubt 
rule.  See 38 U.S.C.A. § 5107(b); see also Ortiz v. Principi, 
274 F. 3d 1361 (Fed. Cir. 2001) (holding that "the benefit of 
the doubt rule is inapplicable when the preponderance of the 
evidence is found to be against the claimant"); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).




ORDER

An initial or staged schedular evaluation in excess of 10 
percent for a ganglion cyst of the right wrist, with 
degenerative changes of the first metacarpophalangeal and 
first carpometacarpal joints, is denied.  


REMAND

The veteran in this instance has also advanced a claim of 
extraschedular entitlement to an initial rating in excess of 
10 percent for his right wrist ganglion and associated 
arthritis, on the basis of a marked interference by such 
disability upon his employment as a mechanic.  See 38 C.F.R. 
§ 3.321(b)(1) (2007).  In his substantive appeal, received by 
the RO in September 2005, the veteran specifically alleged 
that he was a mechanic by trade and that it was nearly 
impossible for him to perform work requiring use of hand 
tools.  Notice is taken that the Board does not have the 
authority to assign, in the first instance, a higher rating 
on an extraschedular basis under 38 C.F.R. § 3.321(b)(1).  
See Bagwell v. Brown, 9 Vet. App. 377 (1996).  Here, the RO 
has not developed or adjudicated the question of whether the 
veteran's right wrist disability warrants consideration for 
an extraschedular rating pursuant to the cited legal 
authority.  In light of the veteran's allegation of 
significant industrial impairment, a remand is thus required 
to facilitate such action.  

Accordingly, this matter is REMANDED for the following 
actions:

1.  Consistent with the provisions of 38 
U.S.C.A. §§ 5103, 5103A (West 2002) and 
38 C.F.R. § 3.159 (2007), the appellant 
must be notified by written 
correspondence of any information and 
evidence not of record (1) that is 
necessary to substantiate his claim for 
an initial or staged extraschedular 
rating in excess of 10 percent for a 
ganglion cyst of the right wrist with 
degenerative changes; (2) that VA will 
seek to provide; (3) that the veteran is 
expected to provide; and (4) must ask the 
veteran to provide any evidence in his 
possession that pertains to the claim.  
38 C.F.R. § 3.159(b)(1).  The AMC should 
then obtain any relevant VA or other 
government records that are identified 
and assist the veteran in securing 
records of evaluation or treatment for 
his right wrist disorder from service 
department and/or private medical 
professionals or treatment facilities, or 
other evidence identified by the veteran, 
provided that he furnishes sufficient 
identifying information and written 
authorization.

Specifically regarding the veteran's 
claim for an extraschedular evaluation 
for his right wrist, he should be advised 
in particular of the need to submit lay 
and/or medical evidence of frequent 
hospitalization for its treatment, and/or 
that his service-connected right wrist 
disorder, alone, results in a marked 
interference with his employment.  38 
C.F.R. § 3.321(b)(1) (2007).  Submission 
of hospitalization records and/or 
statements or records from his current 
and former employers or co-workers as to 
work-related restrictions, use of sick 
leave, etc., would be advisable.  

Depending upon the appellant's response, 
any and all assistance due him must then 
be provided by VA.

2.  Thereafter, the veteran's claim for 
entitlement to an initial or staged 
rating in excess of 10 percent for a 
ganglion cyst of the right wrist, with 
degenerative changes of the first 
metacarpophalangeal and first 
carpometacarpal joints, on an 
extraschedular basis should be 
adjudicated on the basis of all the 
evidence on file and all governing legal 
authority, to include 38 C.F.R. 
§ 3.321(b) (2007) and the holding in 
Fenderson, supra.  If the benefit sought 
on appeal is not granted to the veteran's 
satisfaction, he and his representative 
should be provided with a supplemental 
statement of the case, which must contain 
notice of all relevant actions taken on 
the claim for benefits and the 
dispositive law and regulations.  An 
appropriate period of time should then be 
allowed for a response, before the record 
is returned to the Board for further 
review.

The veteran need take no action until otherwise notified.  
The veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the AMC/RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

The purpose of this remand is to preserve the veteran's due 
process rights.  No 
inference should be drawn regarding the final disposition of 
the claim in question as a result of this action.



____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs