Citation Nr: 0815184	
Decision Date: 05/08/08    Archive Date: 05/14/08

DOCKET NO.  04-30 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUES

1.  Entitlement to compensation under the provisions of 
38 U.S.C.A. § 1151 for loss of use of the left long finger.

2.  Entitlement to a rating in excess of 30 percent for right 
carpal tunnel syndrome.
	
3.  Entitlement to a rating in excess of 10 percent for the 
residuals of a right maxilla fracture with deviated septum.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from 
January 1962 to January 1965.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from rating decisions in December 2002, 
August 2003, and January 2004 by the Huntington, West 
Virginia, Regional Office (RO) of the Department of Veterans 
Affairs (VA).  In March 2008, the veteran testified at a 
personal hearing before the undersigned Veterans Law Judge.  
A copy of the transcript of that hearing is of record.

The issue of entitlement to compensation under the provisions 
of 38 U.S.C.A. § 1151 for loss of use of the left long finger 
is addressed in the REMAND portion of the decision below and 
is REMANDED to the RO via the Appeals Management Center 
(AMC), in Washington, DC.


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issues addressed in this decision was 
obtained.

2.  Right carpal tunnel syndrome is manifested by no more 
than a moderate impairment to the right median nerve of the 
major extremity.

3.  There is limitation of motion of the right wrist and X-
ray evidence of degenerative changes without dorsiflexion of 
less than 15 degrees or palmar flexion limited in line with 
the forearm, including as a result of pain or dysfunction.

4.  Residuals of a right maxilla fracture with deviated 
septum are manifested by air flow of 40 percent through the 
right side of the nose.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 30 percent for 
right carpal tunnel syndrome have not been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, 
Diagnostic Code 8515 (2007).

2.  The criteria for a separate 10 percent rating for right 
wrist arthritis have been met.  38 U.S.C.A. §§ 1155, 5107 
(West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 
5215 (2007).

3.  The criteria for a rating in excess of 10 percent for the 
residuals of a right maxilla fracture with deviated septum 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. § 4.96, Diagnostic Code  (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (hereinafter "the Court") have 
been fulfilled by information provided to the veteran by 
correspondence dated in October 2002, November 2003, June 
2007.  Those letters notified the veteran of VA's 
responsibilities in obtaining information to assist in 
completing his claim, identified the veteran's duties in 
obtaining information and evidence to substantiate his claim, 
and requested that he send in any evidence in his possession 
that would support his claim.  (See 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. 
App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 
110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. 
Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 
(2006).

During the pendency of this appeal, the Court in 
Dingess/Hartman found that the VCAA notice requirements 
applied to all elements of a claim.  An additional notice as 
to these matters was provided in the June 2007 correspondence 
to the veteran.  The Board further finds that through his 
written statements and in his March 2008 hearing testimony, 
the veteran has demonstrated actual knowledge of all relevant 
VA laws and regulations concerning his increased rating 
claims.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  
The applicable rating criteria were adequately reported in 
statements of the case issued in August 2004.  In a July 2007 
VA Form 646 the veteran's representative demonstrated full 
knowledge of the applicable law as shown by reference to 
various VA regulations in that document.  The notice 
requirements pertinent to the issues addressed in this 
decision have been met and all identified and authorized 
records relevant to these matters have been requested or 
obtained.  Further attempts to obtain additional evidence 
would be futile.  The Board finds the available medical 
evidence is sufficient for adequate determinations.  There 
has been substantial compliance with all pertinent VA law and 
regulations and to move forward with the claims would not 
cause any prejudice to the appellant.

Increased Rating Claims - General Law and Regulations

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  The percentage ratings 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(West 2002); 38 C.F.R. § 4.1 (2007).

The Court has held that a claimant may experience multiple 
distinct degrees of disability that might result in different 
levels of compensation from the time the increased rating 
claim was filed until a final decision is made.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).  Upon award of service 
connection, separate compensable evaluations may be assigned 
for separate periods of time if such distinct periods are 
shown by the competent evidence of record during the appeal, 
a practice known as "staged" ratings.  See Fenderson v. 
West, 12 Vet. App. 119, 126 (1999).  

It is the responsibility of the rating specialist to 
interpret reports of examination in the light of the whole 
recorded history, reconciling the various reports into a 
consistent picture so that the current rating may accurately 
reflect the elements of disability present.  38 C.F.R. § 4.2 
(2007).  

Consideration of factors wholly outside the rating criteria 
constitutes error as a matter of law.  Massey v. Brown, 7 
Vet. App. 204, 207-08 (1994).  Evaluation of disabilities 
based upon manifestations not resulting from service-
connected disease or injury and the pyramiding of ratings for 
the same disability under various diagnoses is prohibited.  
38 C.F.R. § 4.14 (2007).  

When there is a question as to which of two evaluations to 
apply, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating, otherwise the lower rating shall be 
assigned.  38 C.F.R. § 4.7 (2007).

The Court has held that where the determinative issue 
involves medical causation or a medical diagnosis, competent 
medical evidence is required.  Grottveit v. Brown, 5 Vet. 
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 
492 (1992).  The United States Court of Appeals for the 
Federal Circuit (Federal Circuit) has also recognized the 
Board's "authority to discount the weight and probity of 
evidence in light of its own inherent characteristics and its 
relationship to other items of evidence."  Madden v. Gober, 
125 F.3d 1477, 1481 (Fed. Cir. 1997).

It is the policy of VA to administer the law under a broad 
interpretation, consistent with the facts in each case with 
all reasonable doubt to be resolved in favor of the claimant; 
however, the reasonable doubt rule is not a means for 
reconciling actual conflict or a contradiction in the 
evidence.  38 C.F.R. § 4.3 (2007).

Right Wrist/Carpal Tunnel Syndrome - Specific Laws and 
Regulations

500
3
Arthritis, degenerative (hypertrophic or 
osteoarthritis):

Degenerative arthritis established by X-ray findings 
will be rated on the basis of limitation of motion under 
the appropriate diagnostic codes for the specific joint 
or joints involved (DC 5200 etc.). When however, the 
limitation of motion of the specific joint or joints 
involved is noncompensable under the appropriate 
diagnostic codes, a rating of 10 pct is for application 
for each such major joint or group of minor joints 
affected by limitation of motion, to be combined, not 
added under diagnostic code 5003. Limitation of motion 
must be objectively confirmed by findings such as 
swelling, muscle spasm, or satisfactory evidence of 
painful motion. In the absence of limitation of motion, 
rate as below:

With X-ray evidence of involvement of 2 or more major 
joints or 2 or more minor joint groups, with 
occasional incapacitating exacerbations
20

With X-ray evidence of involvement of 2 or more major 
joints or 2 or more minor joint groups
10
Note (1): The 20 pct and 10 pct ratings based on X-ray 
findings, above, will not be combined with ratings based on 
limitation of motion.
Note (2): The 20 pct and 10 pct ratings based on X-ray 
findings, above, will not be utilized in rating conditions 
listed under diagnostic code 5013 to 5024, inclusive.
38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007).

521
5
Wrist, limitation of motion of:
Majo
r
Mino
r

Dorsiflexion less than 15º
10
10

Palmar flexion limited in line with forearm
10
10
38 C.F.R. § 4.71a (2007).

                 
38 C.F.R. § 4.71, Plate I (2007) 

The intent of the schedule is to recognize painful motion 
with joint or periarticular pathology as productive of 
disability.  It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  Crepitation either in the soft tissues 
such as the tendons or ligaments, or crepitation within the 
joint structures should be noted carefully as points of 
contact which are diseased.  38 C.F.R. § 4.59 (2007).

The Court has held that disabilities may be rated separately 
without violating the prohibition against pyramiding unless 
the disorder constitutes the same disability or symptom 
manifestations.  See Esteban v. Brown, 6 Vet. App. 259, 261 
(1994).  A separate rating, however, must be based upon 
additional disability.  If the veteran does not at least meet 
the criteria for a zero percent rating under either of those 
codes, there is no additional disability for which a rating 
may be assigned.  See Degmetich v. Brown, 104 F.3d 1328, 1331 
(Fed. Cir. 1997) (assignment of zero-percent ratings is 
consistent with requirement that service connection may be 
granted only in cases of currently existing disability).  

The Court has also held that diagnostic codes predicated on 
limitation of motion do not prohibit consideration of a 
higher rating based on functional loss due to pain on use or 
due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  
See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 
8 Vet. App. 202, 206 (1995).  VA regulations require that a 
finding of dysfunction due to pain must be supported by, 
among other things, adequate pathology.  38 C.F.R. § 4.40 
(2007).  "[F]unctional loss due to pain is to be rated at 
the same level as the functional loss when flexion is 
impeded."  Schafrath v. Derwinski, 1 Vet. App. 589, 592 
(1993).  


The Median Nerve
851
5
Paralysis of:
Majo
r
Mino
r

Complete; 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
70
60

Incomplete:

  Severe
50
40

  Moderate
30
20

  Mild
10
10
861
5
Neuritis
871
5
Neuralgia
38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8615, 8715 (2007).

The term "incomplete paralysis" indicates a degree of lost 
or impaired function substantially less than the type 
picture for complete paralysis given with each nerve, 
whether due to varied level of the nerve lesion or to 
partial regeneration.  When the involvement is wholly 
sensory, the rating should be for the mild, or at most, the 
moderate degree.  The ratings for the peripheral nerves are 
for unilateral involvement; when bilateral the rating should 
include the application of the bilateral factor.  38 C.F.R. 
§ 4.124a (2007).



Factual Background

Service medical records show the veteran developed arthritis 
to the right wrist due to aseptic necrosis of the lunate.  A 
November 1964 separation examination report noted the wrist 
should remain in a plaster cast for four to six months until 
the lesion healed or was stable.  

VA examination in July 1965 revealed pain on the extremes of 
all wrist motion.  The diagnosis was old right lunate 
fracture with aseptic necrosis.  

A July 1970 VA orthopedic examination report noted traumatic 
arthritis to the right wrist.  X-rays revealed the veteran's 
aseptic necrosis was not as marked as it was four years 
earlier.  

Private medical records dated in June 1982 show the veteran 
sustained a spiral fracture to the right distal ulna while 
playing volleyball.  

VA examination in September 1997 included a diagnosis of 
status post fracture of the right wrist with development of 
traumatic arthritis and some loss of motion, mildly 
diminished grip, and probable right carpal tunnel syndrome.  

 VA medical records dated in August 1999 noted a positive 
Tinel's sign to the median nerve of the right wrist.  Records 
show the veteran underwent a right carpal tunnel release in 
October 1999.

VA treatment records dated in November 2001 included a 
diagnosis of traumatic arthritis to the right wrist.  It was 
noted the veteran complained of a loss of right wrist motion 
and pain on activity and that X-rays in January 2000 revealed 
degenerative changes.  The examiner noted the veteran only 
had about 25 percent of normal motion in all directions of 
the wrist.  Simple tasks such as using a computer mouse were 
very painful and splitting wood caused extreme aggravation of 
pain.  

On VA examination in October 2002 the veteran complained of 
pain, weakness, stiffness, giving way, locking, and loss of 
grip strength in his right hand.  He complained of flare-ups 
every time he used his right hand.  He used a brace as a 
corrective device.  It was noted that he stated the disorder 
was an impairment in his employment as a mine safety 
inspector in using computers, writing, or crawling.  However, 
the disorder did not affect his daily activities of living.  
The examiner noted the veteran was right hand dominant.  

An examination revealed right wrist dorsiflexion from 0 to 50 
degree, palmar flexion from 0 to 50 degrees, ulnar deviation 
from 0 to 25 degrees, and radial deviation from 0 to 30 
degrees.  There was pain at the ends of motion and an 
impediment to motion secondary to stiffness.  X-rays revealed 
probable remote traumatic deformity involving the lunate and 
old un-united avulsed fracture fragments at the level of the 
ulnar styloid process.  The examiner noted that there was no 
X-ray evidence of bone degenerative disease, but that a 
carpal tunnel release in October 1999 may have destroyed the 
evidence of arthritis.  It was also noted that it was most 
likely the veteran's wrist problems were secondary to his 
wrist injury during service.

The December 2002 rating decision revised the veteran's 
service-connected disability from limitation of motion of the 
right wrist as a residual of an old fracture with aseptic 
necrosis assigned a 10 percent rating to carpal tunnel 
syndrome of the right wrist with history of traumatic 
arthritis, status post carpal tunnel surgery, and old 
fracture and aseptic necrosis.  A 30 percent disability 
rating was assigned effective from December 1, 1999.  

In his notice of disagreement the veteran asserted higher 
ratings were warranted for incomplete paralysis and for 
arthritis.  In his substantive appeal he noted he had limited 
motion in his right wrist, constant pain, and very little use 
of his hand.  He stated he was unable to touch his thumb to 
his pointer and pinky fingers and that he had problems 
holding a pen or driving a car.  

On VA examination in December 2004 the veteran complained of 
right wrist pain at two on a ten point scale at the lowest 
level and at seven at its worst.  He stated he had weakness 
and swelling and that he had stiffness all the time.  He 
complained of heat and soreness when he used his wrist a lot.  
There was no instability or locking, but he could not play or 
shuffle cards because of fatigability.  He described flare-
ups lasting approximately 40 minutes five times per week 
which were precipitated by operating a vacuum sweeper, 
helping to clean house, working with a hammer, or playing 
cards.  His primary problem on flare-ups was functional loss 
and secondarily was pain.  He noted he wore wrist splints at 
night.  He also stated he was unable to use his right wrist 
while working in the yard or around the house.  

The examiner noted there was tenderness over the area of the 
lunate bone with no instability.  There was demonstrated 
weakness and associated carpal tunnel syndrome.  There was no 
edema, effusion, redness, heat, abnormal movement, guarding, 
or ankylosis.  Range of motion studies revealed dorsiflexion 
to 25 degrees with an additional 5 degrees possible with 
discomfort (normal was noted as from 0 to 70 degrees).  
Palmar flexion was from 0 to 50 degrees with discomfort at 
that level (normal was noted as from 0 to 80 degrees).  
Radial deviation was from 0 to 10 degrees with discomfort 
(normal was noted as from 0 to 20 degrees).  Ulnar deviation 
was from 0 to 20 degrees with discomfort (normal was noted as 
from 0 to 45 degrees).  After squeezing a flashlight ten 
times dorsiflexion was to 10 degrees with pain on addition 
motion from 15 to 25 degrees.  It was noted there were 
complaints of pain, discomfort, and generalized tenderness in 
the wrist after this exercise.  Palmer flexion was from 0 to 
30 degrees with addition motion of 10 with discomfort.  
Radial deviation was from 0 to 10 degrees with discomfort at 
that point and ulnar deviation was from 0 to 20 degrees with 
discomfort at that point.  

X-rays revealed a persistent deformity to the right lunate 
and to a lesser degree the right navicular bone apparently 
related to an old injury.  The diagnoses included fracture 
and deformity of the lunate and old un-united evulsed 
fracture fragment involving the level of the ulnar styloid 
process.  There was degenerative joint disease of the right 
wrist with un-united fracture fragments of the ulnar styloid 
process and traumatic deformity of the lunate.  

VA peripheral nerve examination in December 2004 noted the 
veteran complained that his finger went to sleep, that he 
could not grip, that both hands would swell, and that the 
third and fourth metacarpal phalangeal joints locked up.  He 
described pain as the primary problem with his right carpal 
tunnel syndrome and a secondary problem of numbness waking 
him up at night with paresthesia.  He noted the problems were 
precipitated by lifting over 10 to 15 pounds.  He described 
flare-ups as occurring five days a week and lasting 30 to 40 
minutes usually with functional loss and secondarily with 
weakness and fatigue.  He estimated the pain to his right 
wrist at two on a ten point scale going up to five if he 
split logs or lifted.  He stated the disorder interfered with 
his activities in that he could not split logs, pound nails, 
or open jars without an aid.  He stated he had dropped dishes 
while helping around the house.

An examination revealed normal vibratory and heat/cold 
sensation.  There was a decreased ability to perceive sharp 
to the fingers and thumb.  The examiner noted decreased 2.5/5 
handgrip strength that was equal, bilaterally.  There was 
decreased muscle mass at the base of the thenar eminence.  
The diagnoses included status post right carpal tunnel 
release with recurrent symptoms associated with a wrist 
fracture.  

At his personal hearing in March 2008 the veteran testified 
that if he did not use his right wrist his pain was only 
about five on a ten point scale, but if he bumped it or 
worked with it his hand would swell.  He stated his doctor 
had recommended surgery for his right carpal tunnel syndrome, 
but that he did not want that doctor to perform the surgery 
because of a prior experience.  

Analysis

Based upon the evidence of record, the Board finds the 
veteran's right carpal tunnel syndrome is manifested by no 
more than a moderate impairment to the right median nerve of 
the major extremity.  The degree of lost or impaired 
function is substantially less than complete paralysis of the 
median nerve.  The veteran's hand is not inclined to the 
ulnar side, the index and middle fingers are not shown to be 
more extended than normal, the thumb is not in the plane of 
the hand.  Although decreased muscle mass at the base of the 
thenar eminence was noted upon examination in December 2004, 
there is no indication of considerable atrophy of the 
muscles.  There is also no evidence demonstrating incomplete 
and defective pronation as a result of the median nerve 
disorder nor of an absence of flexion to the index finger 
with feeble flexion of the middle finger.  The Board finds 
that the veteran's report of increased problems after working 
with a hammer indicate he is able to make a fist and that his 
index and middle fingers do not remain extended.  He 
complains of defective opposition and abduction of the thumb 
to the palm and examination has shown weakened wrist flexion 
and pain, but the overall evidence is not indicative of 
severe incomplete paralysis.  Therefore, higher or "staged" 
ratings in excess of 30 percent for right carpal tunnel 
syndrome are not warranted.

The Board finds, however, that there is an additional 
disability manifested by limitation of motion of the right 
wrist with X-ray evidence of degenerative changes.  There is 
no evidence of dorsiflexion less than 15 degrees or palmar 
flexion limited in line with the forearm, including as a 
result of pain or dysfunction for a compensable rating under 
Diagnostic Code 5215, but the wrist is a major joint under 
applicable VA regulations and the overall evidence of record 
demonstrates the presence of arthritis at least since January 
2000.  Therefore, a separate 10 percent rating is warranted 
for right wrist arthritis under Diagnostic Code 5003.

Residuals of a Right Maxilla Fracture with Deviated Septum
Additional Laws and Regulations

Diseases of the Nose and Throat
650
2
Septum, nasal, deviation of:
Ratin
g

Traumatic only,
10

With 50-percent obstruction of the nasal passage 
on both sides or complete obstruction on one side

38 C.F.R. § 4.97, Diagnostic code 6502 (2007).

6513 Sinusitis, maxillary, chronic.
 
General Rating Formula for Sinusitis (DC's 6510 through 
6514):
Following radical surgery with chronic osteomyelitis, or; 
near constant sinusitis characterized by headaches, pain 
and tenderness of affected sinus, and purulent discharge 
or crusting after repeated surgeries
5
0
Three or more incapacitating episodes per year of 
sinusitis requiring prolonged (lasting four to six weeks) 
antibiotic treatment, or; more than six non-incapacitating 
episodes per year of sinusitis characterized by headaches, 
pain, and purulent discharge or crusting
3
0
One or two incapacitating episodes per year of sinusitis 
requiring prolonged (lasting four to six weeks) antibiotic 
treatment, or; three to six non-incapacitating episodes 
per year of sinusitis characterized by headaches, pain, 
and purulent discharge or crusting
1
0
Detected by X-ray only
0
Note: An incapacitating episode of sinusitis means one that 
requires bed rest and treatment by a physician.
38 C.F.R. § 4.97, Diagnostic code 6513 (2007).

Factual Background

Service medical records show the veteran was treated for an 
injury to the right maxillary area after a fight in December 
1964.  The final diagnosis was compound fracture to the right 
maxilla or maxillary antrum.  

VA examination in April 1967 revealed an asymptomatic old 
fracture to the right maxilla.  VA treatment records dated in 
February 2002 noted the veteran's nose was clear.  

In correspondence dated in May 2003 the veteran requested 
entitlement to an increased rating.  He stated the site of 
his maxilla fracture was tender to the touch and that he 
experienced a lot of drainage from the sinus cavity with 
bloody discharge when he blew his nose.  In subsequent 
statements he complained of headaches with tenderness and 
greenish drainage from the right maxilla.

On VA examination in June 2003 the veteran reported that he 
had experienced difficulty breathing through his nose since 
the injury during active service.  He stated that he had been 
on allergy medication and that the disorder had gotten 
progressively worse over the years.  He also stated that he 
had difficulty breathing out of the right side of his nose 
and that he had to mouth breathe about 90 percent of the 
time.  He reported he blew blood out of his nose 
approximately 12 to 15 times per month and that he had green 
to yellow drainage almost every night.  He stated he had 
chronic sinusitis and that the weather affected his symptoms, 
but that he had no allergy attacks and no periods of 
incapacitation or loss of work.  He stated he had worked when 
he was uncomfortable.  

The examiner noted the flow through the veteran's right 
nostril was estimated at 10 to 20 percent and 80 to 90 
percent on the left.  The nose was deviated to the left.  
There was tenderness over the left maxillary sinus.  There 
was no visible drainage or crusting.  The diagnosis was 
status post maxillary sinus fracture on the right with nasal 
deviation to the left from the right.  X-rays revealed no 
gross evidence of acute fracture of the nasal or facial 
bones.  There was no gross evidence of definite fluid levels 
in the sinuses.  There was mild clouding around the nasal 
turbinates possibly representative of sinus disease.  

VA treatment records dated in November 2003 noted a 
significant septal deviation with lateral airway obstruction.  
The possibility of a nasal septoplasty was discussed.  A 
computerized tomography (CT) scan revealed very little 
chronic sinusitis to the right maxillary sinus.  There was 
some nasal septal deviation to the left with possible slight 
nasal cavity narrowing, but intact osteomeatal units.  

VA examination in December 2004 revealed mucosal edema likely 
secondary to allergies, bilaterally, with a deviated septum.  
The air flow was 40 percent through the right side of the 
nose.  There was tenderness to the anterior cheek adjacent to 
the chin.  It was noted the veteran described headaches to 
the bilateral frontal area, but not to the maxillary or the 
left side of the nose.  He also complained of severe nasal 
drainage at night and coughing up brownish-colored material.  
The drainage was "described as serous, but a slightly yellow 
color."  The examiner noted there was no purulent drainage, 
no specific allergy attacks, and no periods of 
incapacitation.  X-rays revealed no sinus disease.  The 
diagnoses included deviated nasal septum, allergic rhinitis, 
and past history of right maxillary sinus fracture with no 
present evidence of sinusitis.  

At his personal hearing in March 2008 the veteran testified 
that he had a severe breathing problem and a lung disability 
from working in the mines for 30 years, but that his deviated 
septum was affecting his ability to breathe.  His spouse 
noted that doctors wanted to perform surgery on his nose.  
The veteran stated that he had more problems breathing in the 
winter when his allergies were more severe.  

Analysis

Based upon the evidence of record, the Board finds the 
veteran's residuals of a right maxilla fracture with deviated 
septum are manifested by air flow of 40 percent through the 
right side of the nose.  The presently assigned 10 percent 
disability rating is the maximum schedular rating available 
under Diagnostic Code 6502.  Therefore, a entitlement to a 
higher or "staged" schedular rating is not possible.

The veteran also contends that he has chronic sinusitis 
manifested by headaches, tenderness, and drainage.  The 
evidence of record demonstrates that he has allergic rhinitis 
for which he has been taking medication of many years without 
any competent evidence indicating that this disorder was 
caused or aggravated as a result of the veteran's maxilla 
fracture in service.  Although a June 2003 X-ray noted mild 
cloudiness possibly representing a sinus disease and a 
November 2003 CT scan revealed a very little chronic 
sinusitis to the right maxillary sinus, the December 2004 VA 
X-ray examination found no evidence of maxillary sinusitis.  
It was the opinion of the December 2004 VA examiner that 
there was no present evidence of sinusitis.

The Board notes that there is no competent medical evidence 
addressing the issue of whether the veteran has chronic right 
maxillary sinusitis as a result of service, but that no 
further development is required at this time because the 
criteria for a separate rating under Diagnostic Code 6513 
have not been met.  There is no present evidence of sinusitis 
detected by X-ray and no evidence of one or two 
incapacitating episodes per year of sinusitis requiring 
prolonged antibiotic treatment.  There is also no probative 
evidence of three to six non-incapacitating episodes per year 
of sinusitis characterized by headaches, pain, and purulent 
discharge or crusting.  In fact, the December 2004 VA 
examiner noted the veteran described headaches to the 
bilateral frontal area and not to the maxillary area.  Sinus 
pain and purulent discharge or crusting due to sinusitis are 
not shown to have been observed upon medical examination.  
While the veteran may sincerely believe that his headaches, 
tenderness, and nasal discharge are due to chronic maxillary 
sinusitis, he is not a licensed medical practitioner and is 
not competent to offer opinions on questions of medical 
causation or diagnosis.  Grottveit, 5 Vet. App. 91; Espiritu, 
2 Vet. App. 492.  Therefore, entitlement to a higher, 
"staged," or separate rating is not warranted.

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence in this case is against the veteran's claim for an 
increased rating.

The Board further finds there is no evidence of any unusual 
or exceptional circumstances, such as marked interference 
with employment or frequent periods of hospitalization, 
related to these service-connected disorders that would take 
the veteran's case outside the norm so as to warrant an 
extraschedular rating.  The veteran's service-connected 
disorders are adequately rated under the available schedular 
criteria.  The objective findings of physical impairment are 
well documented.  The Board finds the overall evidence of 
record is not indicative of a marked interference with 
employment.  Therefore, referral by the RO to the Chief 
Benefits Director of VA's Compensation and Pension Service, 
under 38 C.F.R. § 3.321, is not warranted.  See Bagwell v. 
Brown, 9 Vet. App. 337 (1996).  


ORDER

Entitlement to a rating in excess of 30 percent for a medial 
nerve impairment as a residual of right carpal tunnel 
syndrome is denied.

A separate 10 percent rating for right wrist limitation of 
motion with X-ray evidence of arthritis is granted, subject 
to the regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 10 percent for the 
residuals of a right maxilla fracture with deviated septum is 
denied.


REMAND

A review of the record shows the veteran was notified of the 
VCAA duties to assist and of the information and evidence 
necessary to substantiate his 1151 claim by correspondence 
dated in November 2003 and June 2007.  He was also notified 
by the June 2007 correspondence of the VCAA notice 
requirements for all elements of his claim.  

The revised VCAA duty to assist requires that VA make 
reasonable efforts to assist the claimant in obtaining 
evidence necessary to substantiate a claim and in claims for 
disability compensation requires that VA provide medical 
examinations or obtain medical opinions when necessary for an 
adequate decision.  See 38 C.F.R. § 3.159.  

In this case, the veteran contends that he has loss of use of 
his left long finger as a result of VA medical treatment.  VA 
hospital records show the veteran underwent tenosynovectomy 
and tenolysis to the flexor tendon of the left middle finger 
in September 2002.  Postoperative records note treatment for 
an infection.  An October 2002 report noted a ruptured flexor 
tendon to the left middle finger, postoperative trigger 
finger release on September 18, 2002, and stitch abscess on 
September 27, 2002.  Records indicate he underwent a silastic 
rod insertion to the left middle finger in May 2003.  An 
April 2007 VA orthopedic surgery note reported he presented 
with a non-functional left long finger with a history a 
trigger finger release at the base that became infected with 
scarring of the tendons.  The veteran was referred for 
possible reconstructive surgery.  No opinion, however, has 
been provided as to whether the veteran has an additional 
disability caused by VA hospital care or medical or surgical 
treatment.  In light of the evidence of record, the Board 
finds further development is required prior to appellate 
review.

Regulations provide that benefits under 38 U.S.C. 1151(a), 
for claims received by VA on or after October 1, 1997, for 
additional disability or death due to hospital care, medical 
or surgical treatment, examination, training and 
rehabilitation services, or compensated work therapy program, 
require actual causation not the result of continuance or 
natural progress of a disease or injury for which the care, 
treatment, or examination was furnished, unless VA's failure 
to timely diagnose and properly treat the disease or injury 
proximately caused the continuance or natural progress.  The 
additional disability or death must not have been due to the 
veteran's failure to follow medical instructions.  38 C.F.R. 
§ 3.361 (2007).  

To establish causation the evidence must show that the 
hospital care, medical or surgical treatment, or examination 
resulted in the veteran's additional disability or death.  
Merely showing that a veteran received care, treatment, or 
examination and that the veteran has an additional disability 
or died does not establish cause.  Hospital care, medical or 
surgical treatment, or examination cannot cause the 
continuance or natural progress of a disease or injury for 
which the care, treatment, or examination was furnished 
unless VA's failure to timely diagnose or properly treat the 
disease proximately caused the continuance or natural 
progress.  38 C.F.R. § 3.361(c).  

It must be shown that the hospital care, medical or surgical 
treatment, or examination caused the veteran's additional 
disability or death and that (i) VA failed to exercise the 
degree of care that would be expected of a reasonable health 
care provider or that (ii) VA furnished the hospital care, 
medical or surgical treatment, or examination without the 
veteran's or, in appropriate cases, the veteran's 
representative's informed consent.  To establish the 
proximate cause of an additional disability or death it must 
be shown that there was carelessness, negligence, lack of 
proper skill, error in judgment, or similar instance of fault 
on VA's part in furnishing hospital care, medical or surgical 
treatment, or examination.  Whether the proximate cause of a 
veteran's additional disability or death was an event not 
reasonably foreseeable is in each claim to be determined 
based on what a reasonable health care provider would have 
foreseen.  The event need not be completely unforeseeable or 
unimaginable but must be one that a reasonable health care 
provider would not have considered to be an ordinary risk of 
the treatment provided.  In determining whether an event was 
reasonably foreseeable, VA will consider whether the risk of 
that event was the type of risk that a reasonable health care 
provider would have disclosed in connection with the informed 
consent procedures of 38 C.F.R. § 17.32.  38 C.F.R. 
§ 3.361(d).  

Accordingly, the case is REMANDED for the following action:

1.  Copies of the veteran's complete VA 
medical records, including all 
handwritten reports and signed consent 
documents for any procedures performed, 
should be obtained and associated with 
the appellate record.

2.  Thereafter, the veteran should be 
scheduled for VA examination, by an 
orthopedic surgeon, for an opinion as to 
whether there is at least a 50 percent 
probability or greater (at least as 
likely as not) that he has any additional 
left long finger disability as a result 
of VA treatment.  If any additional 
disability was incurred during VA 
hospitalization, the examiner should 
address whether the proximate cause of 
the additional disability was due to 
carelessness, negligence, lack of proper 
skill, error in judgment, or similar 
instance of fault on VA's part in 
furnishing hospital care.  Whether the 
proximate cause of an additional 
disability was an event not reasonably 
foreseeable is to be determined based on 
what a reasonable health care provider 
would have foreseen.  

All indicated tests and studies are to be 
performed.  Prior to the examination, the 
claims folder and a copy of this remand 
must be made available to the physician 
for review of the case.  A notation to 
the effect that this record review took 
place should be included in the report.  

Opinions should be provided based on the 
results of any examination, a review of 
the medical evidence of record, and sound 
medical principles.  All examination 
findings, along with the complete 
rationale for all opinions expressed, 
should be set forth in the examination 
report.

3.  The veteran must be given adequate 
notice of the date and place of any 
requested examination.  A copy of all 
notifications, including the address 
where the notice was sent, must be 
associated with the claims folder.  The 
veteran is to be advised that failure to 
report for a scheduled VA examination 
without good cause shown may have adverse 
effects on his claim.

4.  After completion of the above and any 
additional development deemed necessary, 
the issue remaining on appeal should be 
reviewed with consideration of all 
applicable laws and regulations.  If any 
benefit sought remains denied, the 
veteran and his representative should be 
furnished a supplemental statement of the 
case and be afforded the opportunity to 
respond.  Thereafter, the case should be 
returned to the Board for appellate 
review.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).



______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals





 Department of Veterans Affairs