Citation Nr: 0816310 Decision Date: 05/16/08 Archive Date: 05/23/08 DOCKET NO. 03-18 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased evaluation for a healed fracture of the right wrist with degenerative changes, currently evaluated as 30 percent disabling, to include entitlement to a separate, compensable evaluation for a scar, right wrist. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from December 1967 to December 1969, and from February 1970 to May 1988, when the veteran retired with more than 20 years of service. The veteran was awarded the Combat Infantryman Badge during his Vietnam service. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The claim was REMANDED in February 2005 and in May 2007. FINDING OF FACT The scar on the veteran's right wrist, dorsal aspect, is not separately tender or painful, but there is general tenderness and pain on palpation of the dorsal aspect of the right wrist, and the right wrist is painful on motion and use, in any plane of motion, and radiologic examination discloses severe osteoarthritic changes, including collapse of the scaphoid bone, and the severe degenerative changes result in instability of the right wrist. CONCLUSION OF LAW The criteria for a 40 percent evaluation for right wrist disability are met, resolving reasonable doubt in the veteran's favor. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5214, 5215 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before the Board assesses the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Duty to notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. In this case, the RO advised the veteran of the evidence required to substantiate a claim for an increased rating for right wrist disability in the January 2003 rating decision, and thereafter in the April 2003 statement of the case (SOC). The claim was thereafter readjudicated in December 2006, following a February 2005 Board Remand, and in August 2007, after a May 2007 Board Remand. The initial defect in notice in this case was cured by issuance of fully compliant notices, in April 2003 and December 2006, followed by readjudication of the claim. Thus, complete and full notice has been issued to the veteran. Even though such notice was not issued to the veteran prior to the initial rating decision, the veteran has not bee prejudiced thereby. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In particular, the veteran was provided additional notice about the criteria pertaining to effective dates and disability ratings in June 2006 and in June 2007, prior to final readjudication of the claim. During the several years of the pendency of this appeal, the veteran has provided private clinical evidence, and has provided statements explaining how the right wrist disability affected his employment, when he was employed, and how it affects his daily activities and daily life. The veteran's written June 2003 statement, submitted with his substantive appeal, describes such symptoms as pain, limitation of range of motion, weakness, fatigue, exacerbations, and functional loss. The veteran's statements demonstrate that he was aware of each criterion applicable to evaluation of his right wrist disability. In particular, the Board notes that, in his June 2003 statement, the veteran indicated that he felt he was entitled to a 40 percent evaluation for his service-connected right wrist disability. Although this is not the maximum schedular disability evaluation which may be assigned for a wrist disability, the assignment below of a 40 percent evaluation for right wrist disability is essentially a grant of the evaluation request made by the veteran. As such, it is not clear that further discussion of the VCAA is required. The record demonstrated that the veteran addressed each of the rating criteria and the effect on his life in his written statements. Therefore, the Board finds that, although the decision in Vazquez-Flores v. Peake had not yet been issued, the veteran demonstrated personal knowledge as to each of the criteria that this decision requires veterans be notified of. The veteran had a meaningful opportunity to participate in the adjudication of the claim addressed in this decision such that essential fairness was assured. Duty to assist VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran was afforded several VA examinations relevant to this claim, including in 2002, 2005, and 2007. He submitted evidence from a private provider, Dr. Z. The Board finds that the record has been fully and fairly developed, and it is possible to make a decision. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for increased evaluation in excess of 30 percent for right wrist disorder Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts The veteran, who reported that he was right-handed, incurred a fracture of the right wrist in service, and service connection for the residuals of the right wrist fracture was granted in 1988, effective as of the day following the veteran's service discharge. The right wrist disability was evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215, used to evaluate limitation of motion of the wrist. In December 2001, the veteran sought an increased evaluation for his service-connected wrist disability. On VA examination conducted in January 2002, the veteran reported that three surgical procedures had been performed on that wrist. He reported increased pain and stiffness in the right wrist, difficulty writing, and periods of flare-ups of pain as frequently as every other day. He used a wrist brace occasionally, but not continuously. Objective range of motion was 0 degrees of flexion, 5 degrees of extension, 5 degrees of ulnar deviation, and 5 degrees of radial deviation, all without pain. Grip strength was 4+/5, and strength on resisted flexion and extension of the wrist was 4/5 in the right wrist compared to the left. Radiologic evaluation disclosed internal fixation with osteoarthritic changes of the carpal bones. The examiner reported that the veteran had tenderness with palpation to the dorsal aspect of the right wrist, including over the navicular bone, and tenderness with palpation of the carpal bones on the medical aspect, but there was no tenderness on the lateral aspect of the wrist. The veteran had a scar on the dorsal aspect of the right wrist, and the veteran complained of tenderness on palpation of the scar. Based on this examination report, the RO increased the veteran's evaluation for right wrist disability to 30 percent. In November 2002, the veteran stated that he was service- connected for "an arthritis condition" and requested re- evaluation. On VA examination conducted in December 2002, the veteran reported using a right wrist brace continuously. He complained that the chronic pain in the right wrist was increased with use or any range of motion. Dorsiflexion was to 10 degrees and palmar flexion to 15 degrees, with 5 degrees of right and left ulnar deviation. There was marked tenderness and stiffness of the wrist, and repetitive activity and activity against resistance both decreased the veteran's range of motion of the right wrist. The examiner noted that the scar on the right wrist was well-healed. The examiner noted that the veteran was unable to perform fine motor activities such as writing or using a drill. The veteran disagreed with the January 2003 rating decision, in which the RO declined to assign an evaluation in excess of 30 percent. In a June 2003 statement, the veteran stated that the "bone that controlled his fingers" had been removed and that he had "pretty much" lost the use of his right hand due to wrist disability. Private clinical records from Dr. Z dated in March 2003 reflect that the veteran declined to have an injection into his wrist, and declined to consider another surgical procedure to the right wrist. He was issued an elastic wrist brace. Radiologic examination disclosed collapse of the scaphoid bone, complete loss of the distal radioulnar joint, changes in the lunate bone, and non-union of the ulnar styloid, with significant osteophyte formation. On VA examination conducted in March 2005, the examiner stated that there was giving away of the right wrist, instability, pain, stiffness, weakness, and severe weekly flare-ups during which the veteran was unable to pick up anything. The veteran had ulnar and radial deviation to 3 degrees, dorsiflexion (extension) and palmar flexion to 10 degrees. There was a white surgical scar approximately 8 cm in length. The examiner noted that there was evidence that osteoarthritis and cystic changes had progressed since the last VA radiologic examination. On VA examination conducted in August 2007, the veteran reported that he had continued pain in the wrist and hand, but that the scar was not painful. The examiner stated that there was no tenderness on palpation of the scar, and no additional limitation of motion due to the scar, although the scar was adherent to underlying tissue. Applicable law and regulations Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5214 provides ratings for ankylosis of the wrist. Favourable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist and 20 percent for the minor wrist; ankylosis of the wrist in any other position except favourable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist; and unfavourable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist. 38 C.F.R. § 4.71a. A Note to DC 5214 provides that extremely unfavourable ankylosis will be rated as loss of use of hands under DC 5125. 38 C.F.R. § 4.71a. Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist. 38 C.F.R. § 4.71a, DC 5215. Analysis The choice of a diagnostic code and appropriate rating in this case is somewhat difficult, because the veteran has limitations in each direction of movement in the right wrist, but the rating criteria only provide evaluation for limitation of dorsiflexion and palmar flexion. Additionally, although the wrist is considered one joint, in fact, the "wrist," unlike other joints, involves articulations between multiple small bones rather than two or three large bones. There are eight (8) carpal bones. Stedman's Medical Dictionary 223 (27th ed. 2000). The distal carpal bones articulate with the four fingers and the thumb, and the more proximal of the carpal bones, the lunate and scaphoid bones, articulate with the radius and ulna of the forearm. In this case, several different outcomes of the wrist fracture have occurred at the various articulations. One of the bones, the scaphoid, has collapsed, according to Dr. Z's radiologic interpretation. (The veteran has described this bone as having been "removed.") Ordinarily, loss of a bone at an articulation might result in something similar to a flail joint. While the veteran's right wrist has not become a flail joint, there is instability, as noted in the report of the March 2005 VA examination. There is no diagnostic code which provides a specific evaluation for loss of a bone of the wrist or an evaluation based on instability of the wrist. According to Dr. Z, the distal radioulnar joint is lost. However, because there are, as noted above, numerous articulations in the wrist, loss of one articulation does not result in ankylosis. The evidence reflects that the veteran retains some motion of the right wrist, although the retained motion is limited by pain and instability, as well as partial ankylosis. There is, however, no evaluation provided for the wrist based on partial ankylosis of the joint. The evidence also reflects that there is non-union of the ulnar styloid. There is no applicable diagnostic code which provides evaluation of the wrist based on non-union of one of the numerous bones involved. Diagnostic Code 5215 provides evaluation for loss of motion of the wrist, but only provides criteria for loss of palmar flexion and loss of dorsiflexion. In this case, the veteran not only has limited palmar flexion and limited dorsiflexion, but he has limited ulnar and radial deviation. The RO determined that the veteran's limitations of palmar flexion and dorsiflexion were each 10 percent disabling, but that the veteran had other limitations of the right wrist as well. The veteran retains motion of the right wrist, and therefore does not have ankylosis of the right wrist as normally defined. The RO determined, however, that it was appropriate to assign an evaluation analogous to favourable ankylosis of the right wrist, so as to warrant a 30 percent evaluation, since some symptomatology presented in the veteran's case is not addressed in any applicable rating code. It is the Board's opinion, however, that, given the severity of degenerative changes manifested in the veteran's case, including ankylosis of one of the numerous articulations, non-union of one of the numerous bones involved, and collapse of one of the eight carpal bones, with limitation of motion in all planes and instability, a 40 percent evaluation, as if there were ankylosis of the wrist in any other position except favourable , is at least equally appropriate. Resolving reasonable doubt in the veteran's favour, the Board finds that a 40 percent evaluation for the residuals of the veteran's service-connected right wrist fracture is warranted. However, the evidence is unfavourable to a separate, compensable evaluation for a scar. The Board notes that, although the examiner who conducted the December 2001 VA examination stated that the veteran complained of tenderness on palpation of a scar on the right wrist, the examiner also noted that the veteran had tenderness with palpation on the dorsal aspect of the wrist. The examiner did not distinguish between pain on palpation of the scar and pain on palpation of the dorsal right wrist. In contrast, on VA examination conducted in August 2007, the veteran denied pain at the site of the scar on the right wrist. The examiner stated that there was no tenderness to palpation of the scar, but noted that the veteran had tenderness to palpation on the dorsal wrist. The Board finds that the preponderance of the evidence is against a separate, compensable evaluation for a scar, right wrist. The veteran also contends that he almost has loss of use of the right hand. The Board has considered the application of 38 C.F.R. § 4.71a, Diagnostic Code 5125 (2007), for loss of use of the hand (amputation) and a 70 percent (major hand) rating. However, neither the veteran's complaints nor the clinical evidence demonstrates or approximates loss of use of the right (major) hand. Although the veteran is unable to perform fine motor functions with the right hand without pain, and additional surgical intervention has been recommended, there is no suggestion that no effective function remains other than that which would be equally well served by an amputation stump with a suitable prosthetic device. The Board has also considered whether the veteran is entitled to an evaluation in excess of 40 percent at any time during the pendency of this appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the 40 percent evaluation assigned in this decision of the Board is based on the highest level of severity present at any time during the pendency of the appeal. There is no evidence which supports an evaluation in excess of 40 percent at any time during the pendency of the appeal. Reasonable doubt has been resolved in the veteran's favor in assigning a 40 percent evaluation based on ankylosis of the wrist in any other position except favourable by analogy. As the evidence is not in equipoise to warrant a finding that the veteran has unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, or symptoms analogous to such findings, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is also against the claim for a separate, compensable evaluation for a scar, right wrist. As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). Extraschedular consideration The Court has held that the Board is precluded by regulation from assigning an extraschedular rating in the first instance. However, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) where circumstances are presented which the UnderSecretary or Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the Board has evaluated by analogy certain symptoms of the veteran's hand and wrist disability which are not specifically addressed in the applicable rating criteria and DCs. However, these symptoms do not present an unusual picture for joint disability, nor does the veteran or his representative argue that an exceptional disability picture is presented. To the extent that the veteran argues that an unusual disability picture is presented, the veteran argues that he is entitled to an evaluation for loss of use of the right hand. The Board finds that loss of use of the hand is addressed in regular schedular criteria, and does automatically warrant referral for extraschedular consideration. The Board finds that the circumstances presented by this case are not so unusual as to be outside the rating criteria for loss of use of the hand. The criteria for extraschedular evaluation are not met. ORDER An increased evaluation from 30 percent to 40 percent is granted, subject to law and regulations governing the effective date of an award of monetary compensation; no higher evaluation or separate compensable evaluation for a scar is warranted, and the appeal is granted to this extent only. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs