Citation Nr: 1002005 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 06-31 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for post-traumatic right (major) wrist derangement, initially evaluated as 10 percent disabling prior to September 22, 2009, and as 70 percent disabling thereafter. 2. Entitlement to an effective date earlier than September 22, 2009 for an award of service connection for a bilateral shoulder disorder. (The issue of entitlement to the repair or replacement of an inground pool heater through Independent Living Services will be addressed in a separate decision.) WITNESSES AT HEARINGS ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD S.F.S., Counsel INTRODUCTION The Veteran served on active duty from January 1968 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, as well as an October 2009 decision by the Appeals Management Center in Washington, D.C. Good or sufficient cause having been shown, the Veteran's motion to advance his appeal on the Board's docket has been granted pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002 & Supp. 2009) and 38 C.F.R. § 20.900(c) (2009). This case was previously before the Board in May 2006, February 2007, and December 2008, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. Based on various statements contained in the file, it would appear that the Veteran seeks entitlement to a higher level of special monthly compensation than now assigned. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and if necessary, appropriate action. The appeal as to the issue of an effective date earlier than September 22, 2009 for an award of service connection for a bilateral shoulder disorder is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. Prior to September 22, 2009, the Veteran's post-traumatic right (major) wrist derangement was characterized by flexion and extension to 20 degrees, with ulnar and radial deviation to 10 degrees, accompanied by pain, tenderness, and weakness, with X-ray evidence of osteoarthritis, but no evidence of ankylosis. 2. The Veteran's service-connected post-traumatic right (major) wrist is currently ankylosed in an unfavorable position, and is both nonfunctional and consistently painful. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for service-connected post-traumatic right (major) wrist derangement prior to September 22, 2009 have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a and Part 4, Codes 5003, 5215 (2009). 2. The criteria for a current evaluation in excess of 70 percent for service-connected post-traumatic right (major) wrist derangement have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71 and Part 4, Codes 5125, 5214 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching this determination, the Board wishes to make it clear that it has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, and those of his spouse, including those offered during the course of an RO hearing in April 2005, and at a subsequent hearing before the undersigned Veterans Law Judge in March 2006, as well as both VA and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks an increased evaluation for service-connected post-traumatic right (major) wrist derangement. In that regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service- connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). While the Board must consider the Veteran's medical history as required by various provisions of 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the regulations do not give past medical reports precedence over current findings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. § 4.45 (2009). Where, as in this case, an appeal stems from an initial rating, VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In the case at hand, in a rating decision of June 2005, the RO granted service connection and a 10 percent evaluation for post-traumatic right (major) wrist derangement, effective from July 9, 2004, the date of receipt of the Veteran's initial claim for service connection. The Veteran voiced his disagreement with that decision, with the result that, in a subsequent rating decision of October 2009, the RO awarded a 70 percent evaluation for the Veteran's service-connected posttraumatic right (major) wrist derangement, effective from September 22, 2009, the date of a VA examination showing entitlement to that benefit. Once again, the Veteran voiced his disagreement with that decision, and the current appeal ensured. The Board notes that, at the time of a private orthopedic examination in September 2003, the Veteran complained of pain in his right wrist and hand, which was most frequently characterized as a continuous ache, and less frequently represented as sharp pain. Also noted were problems with weakness of grip and pinch, as well as a loss of coordination and feeling of instability with regard to the wrist. On physical examination, the Veteran was described as right- handed. The contour and attitude of the Veteran's right wrist was normal in both the active and resting positions. However, there was some evidence of moderate tenderness of the radiocarpal joint, as well as moderate pain on stretching, compression, and shear testing. Range of motion measurements of the Veteran's right wrist showed flexion and extension to 20 degrees, with ulnar and radial deviation to 10 degrees. The pertinent diagnosis noted was of chronic symptomatic post-traumatic derangement of the right wrist and hand, with neural, musculotendinous, ligamentous, and capsular damage. In the opinion of the examiner, the Veteran suffered from restricted motion of his right wrist. Further noted was that magnetic resonance imagining of the Veteran's right wrist conducted in July 2003 had shown evidence of multiple cysts, as well as sclerosis in the lunate felt to be representative of early Klienblock disease. Reportedly, following a review of diagnostic studies, as well as the Veteran's subjective complaints and objective findings, the examiner was of the opinion that the Veteran was restricted to the point that he had difficulty using his hands, and would certainly require a future wrist fusion. Private physical therapy treatment records dated in October 2004 showed evidence of full flexion and extension, though with slightly reduced strength, of the Veteran's right wrist. VA bone imaging conducted in January 2005 showed evidence of degenerative/arthritic changes of both of the Veteran's wrists. At the time of a private orthopedic examination in early November 2006, the Veteran complained of right wrist pain when attempting to pick up any object weighing more than a couple of pounds. Also noted were problems with pain on bending the wrist. According to the Veteran, he at times utilized a splint, which did decrease the pain in his right wrist. On physical examination, there was evidence of bilateral tenderness of the scaphoid wrist, accompanied by a palpable nodule which was very tender in the area of the right scaphoid wrist. Also noted was some fullness of the capsules bilaterally, though with no evidence of any palpable crepitus. At the time of examination, there was noted a possible deficit of the scapholunate on the right, which was not felt on the left. Palmar flexion was decreased on the right, as was dorsiflexion. Moreover, ulnar deviation was increased slightly on the right when compared to the left. Pending radiographic studies, the clinical impression was of radiocarpal arthritis, which, according to the examiner, would require an arthroplasty. Additionally noted was that partial arthrodesis might be recommended, though this was dependent on the aforementioned X-ray studies. At the time of a subsequent VA orthopedic examination in June 2009, it was noted that the Veteran's medical records were available, and had been reviewed. When questioned, the Veteran complained of right wrist pain, which reportedly had its onset in 2003. Also noted was a prior history of "Klineblock disease." According to the Veteran, he had received treatment in the form of medication for his right wrist disability, though his response to that treatment had been poor. When further questioned, the Veteran complained of giving way and instability in his right wrist, as well as problems with pain, stiffness, and weakness. On physical examination, range of motion measurements showed dorsiflexion and palmar flexion to 0 degrees, with radial and ulnar deviation to 2 degrees. Following repetitive motion, dorsiflexion and palmar flexion, as well as both radial and ulnar deviation, were to 0 degrees. Noted at the time of examination was ankylosis of the Veteran's right wrist, though that ankylosis was stable. According to the examiner, the Veteran had very limited range of motion of his right wrist, which was somewhat tender to palpation. Significantly, radiographic examination showed a collapsed joint space of the radiocarpal, with evidence of stage III scapholunate ligament disease bilaterally. In the opinion of the examiner, the Veteran had no lateral, dorsal, or palmar range of motion. Rather, his wrist was fixed in the neutral position. Further noted was that the Veteran's right wrist was ankylosed in an unfavorable position, and was both nonfunctional and consistently painful. According to the examiner, the loss of function of the Veteran's right wrist was additionally impacted by pain. Moreover, given the fact the Veteran's wrist was fixed in an unfavorable position, and characterized by a loss of function, it was the opinion of the examiner that the Veteran should be rated on the basis of loss of use of his right hand under Diagnostic Code 5125 (of the Rating Schedule). In an addendum to the aforementioned VA orthopedic examination dated in September 2009, it was noted that the Veteran's claims folder had been reviewed, but that such review had not resulted in any change in the examiner's evaluation or opinions. Pursuant to applicable law and regulation, degenerative arthritis established by X-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 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 percent 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. 38 C.F.R. § 4.71a and Part 4, Code 5003 (2009). As regards the Veteran's right wrist, a 10 percent evaluation is warranted where there is evidence of limitation of motion of the (major) wrist such that dorsiflexion is less than 15 degrees, or palmar flexion is limited to in line with the forearm. An increased, which is to say, 30 percent evaluation, would be indicated where there was evidence of favorable ankylosis in 20 to 30 degrees dorsiflexion, with a 40 percent evaluation requiring ankylosis in any other position except favorable. A 50 percent evaluation would be indicated where there was evidence of unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Significantly, extremely unfavorable ankylosis is to be rated as loss of use of the hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a and Part 4, Codes 5214, 5215 (2009). A 70 percent evaluation, under those same laws and regulations, requires demonstrated evidence of loss of use of the hand, with an 80 percent evaluation requiring evidence of amputation of the forearm above the insertion of the pronator teres. 38 C.F.R. § 4.71a and Part 4, Codes 5123, 5124, 5125 (2009). As is clear from the above, prior to September 22, 2009, no more than a 10 percent evaluation was warranted for the Veteran's service-connected post-traumatic right (major) wrist derangement. In that regard, while at the time of the aforementioned private orthopedic examination in September 2003, there was evidence of pain and tenderness in the radiocarpal joint of the Veteran's right wrist, range of motion measurements obtained at that time showed flexion and extension to 20 degrees, with ulnar and radial deviation to 10 degrees. Moreover, during the course of subsequent physical therapy in October 2004, the Veteran displayed both full flexion and extension of his service-connected right wrist. While at the time of a private orthopedic examination in November 2006, there was evidence of tenderness, as well as a palpable nodule at the right scaphoid wrist, that examination showed evidence of both palmar flexion and ulnar deviation of the Veteran's right wrist. Not until the time of the aforementioned VA orthopedic examination on September 22, 2009 was there evidence of unfavorable ankylosis resulting in a complete loss of function sufficient to warrant the assignment of a 70 percent evaluation under Diagnostic Code 5125 based on loss of use of the Veteran's right hand. Significantly, that 70 percent evaluation represents the maximum schedular evaluation available for the Veteran's service-connected right wrist disability absent amputation of his right upper extremity at a point above the insertion of the pronator teres. As regards the Veteran's potential entitlement to an increased rating on an extraschedular basis, the Board notes that the Veteran is currently in receipt of separate and distinct 100 percent schedular evaluations for no less than two service-connected disabilities, as well as special monthly compensation, all of which contemplates an inability to engage in substantially gainful employment. Accordingly, any discussion of entitlement to an evaluation in excess of 70 percent on an extraschedular basis would be gratuitous at best. Under the circumstances, the assigned 10 percent rating in effect prior to September 22, 2009, and the assigned 70 percent rating thereafter are appropriate, and the Veteran's claim for increase must be denied. VCAA Finally, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence he is expected to provide. In the case at hand, the Board finds that the VCAA notice requirements have been satisfied by letters dated in July 2004, October 2006, and June 2009. To the extent there exists 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), such error was nonprejudicial, in that it did not affect the essential fairness of the adjudicatory process. In point of fact, based on a review of the entire file, it is clear that the Veteran had a full understanding of the elements required to prevail on his claim. Moreover, the Veteran has raised no allegations of prejudice resulting from error on the part of VA. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Goodwin v. Peake, 22 Vet. App. 128 (2008). As to informing the Veteran of which information and evidence he was to provide to VA, and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran that it had a duty to obtain any records held by any Federal agency. It also informed him that, on his behalf, VA would make reasonable efforts to obtain records which were not held by a Federal agency, such as records from private doctors and hospitals. Finally, the RO informed the Veteran that he could obtain private records himself and submit them to VA. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In that regard, in connection with the current appeal, VA has obtained both VA and private treatment records, as well as VA and private examination reports. For the foregoing reasons, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1329 (Fed. Cir. 2006). ORDER An initial evaluation in excess of 10 percent for service- connected post-traumatic right (major) wrist derangement prior to September 22, 2009 is denied. A current evaluation in excess of 70 percent for service- connected post-traumatic right (major) wrist derangement is denied. REMAND In addition to the above, the Veteran in this case seeks an effective date earlier than September 22, 2009 for an award of service connection for a bilateral shoulder disorder. In that regard, at the time of a rating decision in October 2009, the Appeals Management Center granted service connection and a noncompensable evaluation for a left and right shoulder disorder effective from September 22, 2009, the date of a VA medical examination. The Veteran subsequently expressed his disagreement with the assignment of that effective date. However, the RO/AMC has yet to issue a Statement of the Case on that issue. This must be accomplished prior to a final adjudication of the Veteran's current claim for an effective date earlier than September 22, 2009 for the award of service connection for a left and right shoulder disorder. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: The RO/AMC should adjudicate the Veteran's claim for an effective date earlier than September 22, 2009 for an award of service connection for left and right shoulder disabilities. Should such an earlier effective date be denied, the Veteran should be provided with a Statement of the Case (SOC). Accompanying that SOC should be notice to the Veteran of his appellate rights, and of the need to timely file a Substantive Appeal in order to perfect his appeal for an effective date earlier than September 22, 2009 for an award of service connection for a bilateral shoulder disability. The SOC must contain notice of all relevant action taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs