Citation Nr: 1007335	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  05-13 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating for residuals of a left 
wrist fracture with traumatic arthritis, rated as 70 percent 
disabling since May 1, 2006.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and his fiancée


ATTORNEY FOR THE BOARD

Anthony M. Flamini, Associate Counsel

INTRODUCTION

The Veteran served in the Air Force National Guard from 
August 1982 to July 1990.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a May 2004 rating decision of a Department of 
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, 
that increased the evaluation for residuals of a left wrist 
fracture with traumatic arthritis from zero percent to 10 
percent disabling, effective January 22, 2004.  In June 2007, 
the RO increased the rating from 10 percent to 70 percent 
disabling, effective May 1, 2006.  In a June 2005 decision, 
the Board denied the Veteran's claim for entitlement to a 
rating in excess of 10 percent for residuals of a 
left wrist fracture with traumatic arthritis from January 22, 
2004, to May 2, 2005.

In May 2008, the Veteran testified at a Travel Board hearing 
held before the undersigned Acting Veterans Law Judge.

This case was remanded by the Board in June 2009 for further 
development and is now ready for disposition.


FINDING OF FACT

Since May 1, 2006, the Veteran's left wrist fracture with 
traumatic arthritis has been manifested by loss of use of his 
dominant hand.  


CONCLUSION OF LAW

The criteria for a disability rating in excess of 70 percent 
for left wrist fracture with traumatic arthritis have not 
been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.69, 
4.71a, 4.73, Diagnostic Codes 5125, 5214, 5215 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), 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. 2009); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).

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; and (3) that the claimant is expected to 
provide.  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).  

When VCAA notice is delinquent or erroneous, the "rule of 
prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2).  
In the event that a VA notice error occurs regarding the 
information or evidence necessary to substantiate a claim, VA 
bears the burden to show that the error was harmless.  
However, the appellant bears the burden of showing harm when 
not notified whether the necessary information or evidence is 
expected to be obtained by VA or provided by the appellant.  
See Shinseki v. Sanders, 556 U.S. ___ (2009).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including: (1) 
Veteran status; (2) existence of a disability; (3) a 
connection between the Veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the Veteran in January 2004 that fully 
addressed all notice elements and was sent prior to the 
initial RO decision in this matter.  The letter informed him 
of what evidence was required to substantiate the claim and 
of his and VA's respective duties for obtaining evidence.  
Under these circumstances, the Board finds that the 
notification requirements of the VCAA have been satisfied as 
to both timing and content.

With respect to the Dingess requirements, in March 2006, the 
RO provided the Veteran with notice of what type of 
information and evidence was needed to establish a disability 
rating, as well as notice of the type of evidence necessary 
to establish an effective date.  With that letter, the RO 
effectively satisfied the remaining notice requirements with 
respect to the issue on appeal.  

Therefore, adequate notice was provided to the Veteran prior 
to the transfer and certification of his case to the Board 
and complied with the requirements of 38 U.S.C.A.. § 5103(a) 
and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a Veteran in the development of 
the claim.  This duty includes assisting him or her in the 
procurement of service treatment records and other pertinent 
records, and providing an examination when necessary.  See 
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). 

After a careful review of the file, the Board finds that all 
necessary development has been accomplished, and therefore 
appellate review may proceed without prejudice to the 
Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  
First, the RO has obtained service treatment records, VA 
treatment records, and private treatment records.  Further, 
the Veteran submitted additional records as well as written 
statements in support of the claim, and was provided an 
opportunity to set forth his contentions during the hearing 
before the undersigned Acting Veterans Law Judge in May 2008.  
Next, specific VA medical opinions pertinent to the issues on 
appeal were obtained in May 2007, February 2009, and August 
2009.  Therefore, the available records and medical evidence 
have been obtained in order to make an adequate determination 
as to this claim.  

Significantly, neither the Veteran 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 is required to fulfill VA's 
duty to assist 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).

The Board is also satisfied as to the RO's substantial 
compliance with its June 2009 remand directives.  See Dyment 
v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 
Vet. App. 268 (1998).  This included scheduling the Veteran 
for a VA examination to determine the nature, extent, and 
severity of his residuals of a left wrist fracture with 
traumatic arthritis.  

Here, the Veteran seeks a rating in excess of 70 for his 
residuals of a left wrist fracture with traumatic arthritis.  
He was assigned a 70 percent disability rating effective 
October 1, 2005, by a March 2006 rating decision.  He was 
later awarded entitlement to individual unemployability 
(TDIU) due to his residuals of a left wrist fracture with 
traumatic arthritis effective May 12, 2008.  However, the 
Veteran indicated that he still wanted to pursue his appeal 
and sought a 100 percent rating for his residuals of a left 
wrist fracture.  

Disability evaluations are determined by comparing a 
Veteran's present symptomatology with criteria set forth in 
VA's Schedule for Rating Disabilities, which is based on 
average impairment in earning capacity.  See 38 U.S.C.A. § 
1155; 38 C.F.R. Part 4.  When a question arises as to which 
of two ratings apply under a particular diagnostic code, the 
higher evaluation is assigned if the disability more closely 
approximates the criteria for the higher rating; otherwise, 
the lower rating will be assigned.  See 38 C.F.R. § 4.7.  
After careful consideration of the evidence, any reasonable 
doubt remaining is resolved in favor of the Veteran.  See 38 
C.F.R. § 4.3.  Where the evidence contains factual findings 
that show a change in the severity of symptoms during the 
course of the rating period on appeal, assignment of staged 
ratings would be permissible.  See Hart v. Mansfield, 21 Vet. 
App. 505 (2007).   However, here, the evidence reflects that 
the Veteran's symptoms have remained constant throughout the 
course of the period on appeal and, as such, staged ratings 
are not warranted.

In addition, the assignment of a particular diagnostic code 
is "completely dependent on the facts of a particular case."  
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One 
diagnostic code may be more appropriate than another based on 
such factors as the Veteran's relevant medical history, his 
current diagnosis, and demonstrated symptomatology.  Any 
change in diagnostic code by a VA adjudicator must be 
specifically explained.  See Pernorio v. Derwinski, 2 Vet. 
App. 625, 629 (1992).

Further, when evaluating musculoskeletal disabilities, VA may 
consider granting a higher rating in cases in which 
functional loss due to pain, weakness, excess fatigability, 
or incoordination is demonstrated, and those factors are not 
contemplated in the relevant rating criteria.  See 38 C.F.R. 
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

In addition, VA must consider whether the service-connected 
residuals of a left wrist fracture warrant separate ratings 
for the residual scarring.  See Esteban v. Brown, 6 Vet. App. 
259, 261 (1994) (permitting separate evaluations for separate 
problems arising from the same injury if they do not 
constitute the same disability or same manifestation under 38 
C.F.R. § 4.14).  Diagnostic Code 7804 provides that scars 
that are tender and painful on examination warrant a maximum 
10 percent rating.  Under Diagnostic Code 7805, scars are 
rated based on the limitation of motion of the part affected.

Loss of use of a hand or a foot will be held to exist when no 
effective function remains other than that which would be 
equally well served by an amputation stump at the site of 
election below elbow or knee with use of a suitable 
prosthetic appliance.  The determination will be made on the 
basis of the actual remaining function, i.e., whether the 
acts of grasping, manipulation, and the like in the case of 
the hand or of balance, propulsion, and the like in the case 
of the foot, could be accomplished equally well by an 
amputation stump with prosthesis.  38 C.F.R. § 4.63 (2009).  

Under the laws administered by VA, disabilities of the upper 
extremities are rated under 38 C.F.R. § 4.71a.  For rating 
purposes, a distinction is made between major (dominant) and 
minor musculoskeletal groups.  Handedness for the purpose of 
a dominant rating will be determined by the evidence of 
record, or by testing on VA examination.  Only one hand shall 
be considered dominant.  The injured hand, or the most 
severely injured hand, of an ambidextrous individual will be 
considered the dominant hand for rating purposes. 38 C.F.R. § 
4.69 (2009).  Here, as the medical evidence shows that the 
Veteran is left-hand dominant, his left upper extremity is 
his dominant extremity for rating purposes.

The Veteran's residuals of a left wrist fracture are 
currently rated as 70 percent disabling under Code 5125, 
which provides for a 60 percent disability rating for loss of 
use of the minor hand and a 70 percent disability rating for 
loss of use of the major hand.  Similar codes provide for 
higher disability rating upon the amputation of an upper 
extremity.  However, as there is no evidence suggesting that 
any portion of the Veteran's upper extremities have been 
amputated, these codes are not for application.  

Code 5215, limitation of motion of the wrist, provides for a 
maximum schedular 10 percent disability rating for 
dorsiflexion less than 15 degrees or palmar flexion limited 
in line with the forearm.  Similarly, Code 5214 provides for 
a maximum schedular 50 percent rating for unfavorable 
ankylosis of the major wrist, in any degree of palmar 
flexion, or with ulnar or radial deviation.  However, as the 
Veteran is already rated at 70 percent, these codes would not 
provide a higher rating.  

With respect to neurological manifestations of the 
disability, the only Diagnostic Code which provides for an 
evaluation in excess of the Veteran's current 70 percent 
rating is Code 8513, which offers a 90 percent rating for 
complete paralysis of all radicular groups in the major 
extremity.  However, as there is no indication that the 
Veteran's elbow and shoulder are completely paralyzed, Code 
8513 is not for application.  

The Veteran was afforded a VA examination in May 2007, at 
which time he was diagnosed with residuals of a left wrist 
fracture.  Upon examination, his left wrist was fused.  He 
reported difficulty gripping and weakness in his fingers.  He 
had no motion in the left wrist, with no swelling or 
erythema.  His fingers could form a fist, although not a 
complete fist, and his grip strength was diminished compared 
to his right hand.  His cranial nerves II-XII were grossly 
intact.  

The Veteran was afforded another VA examination in February 
2009, at which time the examiner found that he had an 
essentially useless left hand with minimal range of motion 
and no useful grip strength.  Upon examination, the left 
wrist was fused and had no motion.  There was an internal 
fixation plate on the dorsum of the right wrist which was 
palpable.  On the dorsum of the wrist was a scar 13 
centimeters in length , a ventral scar of 6.5 centimeters, 
and a transverse scar estimated to be approximately 6 
centimeters in length.  The scars were all non-tender to 
light palpation, although there was numbness and sharp 
sensation around the scars.  The scars are slightly movable 
and stable, but neither raised nor recessed.  On the dorsum 
of the hand and the wrist, the scar is slightly lighter 
colored than the surrounding tissue.  

Motion of the hand was extremely limited with decreased grip 
strength.  He could not fully extend any of the digits nor 
could he fully flex any of the digits into the palm to make a 
fist.  There was weakness throughout examination, but no 
fatiguability or incoordination.  Sensory examination 
revealed hyperesthesia around the radial side of the hand and 
forearm, and the loss of sharp sensation on the dorsum and 
volar surface of the left hand.  The loss of sharp sensation 
went almost to the mid forearm on the ulnar side of the hand 
and forearm.  

The Veteran was afforded his most recent VA joint examination 
in August 2009, at which time he was diagnosed with navicular 
fracture of the left wrist, multiple navicular bone grafts 
with poor healing, traumatic arthritis of the left wrist, 
arthrodesis of the left wrist, and reflex sympathetic 
dystrophy.  Upon examination, he was found to have a 10-
centimeter scar over the dorsum of the distal full arm and 
wrist as well as a 6-centimeter scar over the volar surface 
of the wrist on the radial side.  He had no motion in the 
fingers and could not grip or write.  He had weak pushing and 
pulling.  He held the metacarpal phalangeal joint at 45 
degrees, the proximal interphalangeal joint at 45 degrees, 
and the distal phalanxes at 45 degrees.  He exhibited no 
extension.  He lacked 5 centimeters of approximating the tips 
of his fingers to the proximal crease of his hand, and 
exhibited tenderness on palpation of the wrist.  

As the Veteran's residuals scars were not shown to be tender 
and painful upon examination, a 10 percent rating under 
Diagnostic Code 7804 is not warranted.

The above determination is based on application of pertinent 
provisions of the VA's Schedule for Rating Disabilities.  
There is also no showing that the residuals of the Veteran's 
service-connected residuals of a left wrist fracture with 
traumatic arthritis warrant the assignment of higher 
evaluations on an extraschedular basis.  See 38 C.F.R. § 
3.321.  Although there is an indication that the disabilities 
result in marked interference with employment (i.e., beyond 
that contemplated in the assigned evaluations), the Veteran 
has already been assigned a TDIU based on these disabilities.  
Moreover, residuals of a left wrist fracture with traumatic 
arthritis have not been shown to warrant frequent periods of 
hospitalization, or to otherwise render impractical the 
application of the regular schedular standards.  In the 
absence of evidence of these factors, the Board is not 
required to remand the claim to the RO for the procedural 
actions outlined in 38 C.F.R. § 3.321(b)(1).  See Bagwell v. 
Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. 
App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 
(1995).


ORDER

Entitlement to an increased rating for residuals of a left 
wrist fracture with traumatic arthritis, rated as 70 percent 
disabling since May 1, 2006, is denied.



____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs