Citation Nr: 1012147 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 05-38 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 10 percent for a left wrist disability, to include a compensable rating prior to August 21, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jared Haynie, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1959 to March 1961. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. For the period before August 21, 2009, the Veteran's left wrist disability was not characterized by dorsiflexion less than 15 degrees, by palmar flexion in line with the forearm, or by ankylosis of the wrist. 2. The Veteran does not have ankylosis in his left wrist. CONCLUSION OF LAW Criteria for a rating in excess of 10 percent for a left wrist disability, to include a compensable rating earlier than August 21, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5214, 5215 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran and his representative contend that the Veteran's service-connected status post fracture left navicular bone, left wrist with mild degenerative changes ("left wrist disability") is more disabling than currently evaluated. Initially, the Board notes that VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 C.F.R. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, in an April 2004 letter, VA informed the Veteran of the evidence VA had received to date, the evidence VA was responsible for obtaining, how the Veteran could help VA going forward, and what the evidence must show to support his claim. The Veteran was not informed about how VA determines disability ratings and effective dates; however, there is no indication that the Veteran's claim was prejudiced by this oversight. See Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (holding that only prejudicial notice errors merit remand). In addition, VA has a duty to assist a claimant in the development of the claim. This duty includes (1) assisting the claimant in the procurement of service treatment records and other pertinent records and (2) providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question that has not been addressed first by the RO, it must consider whether the claimant was given adequate notice, and if not, whether the claimant was prejudiced thereby). The RO obtained the Veteran's VA treatment records. The Veteran did not indicate that he sought any private treatment during the course of his appeal. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also afforded two VA examinations (in February 2005 and August 2009). The Veteran objected to adequacy of the February 2005 examination because his pain medication interfered with his thought process on the day of the examination, and consequently, he was unable to think clearly and therefore "said some things that were not correct." Among other things, he mistakenly thought (at the time of the examination) the examiner was questioning him about his right wrist rather than his left wrist. Subsequently, the RO scheduled the Veteran for another examination in August 2009. The Veteran now objects to the adequacy of that examination as well. VA-provided medical examinations must be legally "adequate." Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). To that end, examinations must be both "thorough and contemporaneous." Caluza v. Brown, 7 Vet. App. 498, 505-06 (1995); accord Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). A thorough examination "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In other words, it must provide "sufficient detail" to enable the Board to make a "fully informed evaluation." Id. The Veteran argues that the August 2009 examination was inadequate because the examination report does not accurately reflect the conversation that took place between the Veteran and the examiner. In essence, the Veteran raises two contentions. First, he points out that the examination report reflects that the Veteran complained of a "dull" ache that occurred twice or three times each month and lasted no longer than twenty-four hours at a time. He asserts that he made no such statement to the examiner. Rather, he asserts that in response to the examiner's inquiry as to whether the pain was a dull pain, he answered, "No. It [is] severe and keeps me awake at night." Second, the Veteran argues that the range of motion testing was inaccurately measured. He argues, "[t]he examiner stated that dorsiflexion was measured at 40 degrees which is normal, but the fact is that I was not able to move my left wrist as [the] examiner requested. Therefore how can he say he measured the dorsiflexion at 40 degrees?" The actual examination report, discussed in greater detail below, states, "[a]t the beginning of the examination, dorsiflexion was measured at 40 degrees. The veteran then refused further examination." The Veteran objects to that statement. He contends, "I did not refuse to try to move my left wrist. I could not move it due to pain and limited motion." The Board has reviewed the examination report and finds that the examination was adequate. Most significantly here, the Board notes that the Veteran had some range of motion of the left wrist. The Veteran himself concedes that he had "limited motion." Whether the range of motion was truly 40 degrees-or something less than 40 degrees-is immaterial to the outcome here because (as described in greater detail below) the Veteran is already receiving the maximum schedular rating permitted under the rating criteria absent a showing of ankylosis (immobility and consolidation of a joint). There is no evidence of ankylosis in the record. Accordingly, the Board finds that the examination was adequate because the error, if any, contained in the August 2009 examination report was harmless error in that it did not affect the outcome here. In other words, even assuming that what the Veteran says about the examination is true, there is no possibility that an increased rating is warranted by the evidence here because the Veteran does not allege-and the evidence does not show-ankylosis of the left wrist. In short, VA has fulfilled its duty to assist in every respect. II. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities. The rating percentages represent, as far as practically can be determined, the average impairment of the Veteran's earning capacity. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, VA must consider the entire history of the disability. 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) (rating decisions must be based on a review of the "full recorded history of the condition"). VA assigns the disability rating that most closely reflects the level of social and occupational impairment a Veteran is suffering. Where a question arises as to which of two ratings to apply, the higher rating will be assigned if the "disability picture" more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises as to the degree of a veteran's disability, VA resolves the doubt in the veteran's favor. 38 C.F.R. § 4.3. When assigning a disability rating, VA is obligated to consider whether a veteran is entitled to "staged" ratings (separate ratings assigned for separate time periods). Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (staged ratings for increased-rating claims). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins March 30, 2003 (one year before the Veteran filed his claim for increased rating), and continues to the present time. When VA evaluates a service-connected disability involving a joint, it must do so not only in regard to its limitation of motion, but also in regard to its functional loss resulting from pain (as supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion), weakness, excess fatigability, incoordination, or atrophy of disuse. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Because weakness is "as important as limitation of motion," a joint which becomes painful on use is regarded as "seriously disabled." 38 C.F.R. § 4.40. In addition, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, in June 1988 the RO established service connection for residuals of a left wrist injury and assigned a noncompensable evaluation. In the March 2005 rating decision that is the subject of this appeal the RO declined to increase the evaluation. The Veteran appealed, and in an October 2009 rating decision, the RO re-characterized the Veteran's disability as status post fracture left navicular bone, left wrist with mild degenerative changes, and increased the evaluation to 10 percent disabling, effective August 21, 2009. The Veteran contends that his service- connected left wrist disability is more disabling than currently evaluated. The RO rated the Veteran's left wrist disability under Diagnostic Code (DC) 5215, which pertains to limitation of motion of the wrist. Under DC 5215, a maximum 10 percent rating is warranted where there is dorsiflexion less than 15 degrees, or where palmar flexion is limited in line with the forearm. DC 5214 pertains to ankylosis of the wrist and provides for ratings greater than 10 percent where there is ankylosis (favorable or otherwise) of the wrist. 38 C.F.R. § 4.71a, DCs 5214, 5215. Turning to the relevant evidence of record, the Board notes that the Veteran underwent a VA examination in February 2005. (The Board notes that the Veteran objected to the adequacy of this examination and was granted another examination; the Board takes that fact into account in its analysis below.) The examination report states that the Veteran was somewhat incredulous that he was there for evaluation of his wrist and that he had no problems with his wrist and had not requested an increased rating for his wrist disability. The Veteran reported that his wrist disability did not interfere with his ability to perform his various job duties. He reported no flare-ups or incapacitating episodes of wrist pain. Physical examination revealed no evidence of redness, heat, swelling, or deformity. There was no tenderness to palpation. Range of motion testing showed dorsiflexion to 40 degrees; palmar flexion to 40 degrees; ulnar deviation to 35 degrees; and radial deviation to 10 degrees. There was no pain on motion and no additional limitation of motion after repetitive motion. No X-rays were obtained. The examiner opined that the Veteran's left wrist disability was asymptomatic. In August 2009, the Veteran underwent another VA examination. (As discussed above, the Board notes that the Veteran objects to the adequacy of the August 2009 examination; the Board takes that fact into account in its analysis below.) The Veteran complained of a dull ache of the left wrist which occurred two to three times per month and never lasted more than twenty-four hours at a time. He also reported experiencing, on rare occasions, severe fleeting pain that lasted less than one second. He stated that the pain had been episodic since 1959 and had, over time, progressed to some degree. He denied experiencing flare-ups. He reported that he was right-hand dominant. Physical examination showed no heat, swelling, or erythema (redness of skin). Regarding limitation of motion testing, the examiner recorded the following, "At the beginning of the examination, dorsiflexion was measured at 40 degrees. The veteran then refused further examination. No palmar flexion, radial deviation or ulnar deviation. He refused Phalen's test and Tinel's test. The veteran quot[ed] discomfort during range of motion. The veteran did agree to x-rays." An X-ray of the left wrist revealed mild degenerative changes, with no acute bone or joint abnormalities. The examiner diagnosed the Veteran with status post fracture, left navicular bone with mild degenerative changes. The examiner commented that the Veteran's subjective complaints appeared inconsistent with the documented objective evidence. In addition, the examiner stated that range of motion testing "can be rendered inaccurate by suboptimal effort as well as psychosocial overlays," but he could not say to what degree such factors impacted these measurements. The Veteran contends he is entitled to a compensable rating for the period before August 21, 2009; and to a rating greater than 10 percent for the period beginning August 21, 2009. 1. The Period Before August 21, 2009 The Veteran contends he is entitled to a compensable rating for the period before August 21, 2009. As discussed above, a 10 percent rating is warranted where there is dorsiflexion less than 15 degrees or where palmar flexion is limited in line with the forearm. In support of his claim, the Veteran submitted a letter from a private physician-dated August 1987-that discussed, in relevant part, the extent of the Veteran's left wrist disability. (The Board notes that the August 1987 letter was submitted directly to the Board, without a waiver of RO consideration; however, the letter is a photocopy of the original letter that was submitted to VA in August 1987. Accordingly, the Board may proceed to rule on the merits of the case without a waiver of RO consideration.) There are two reasons why the August 1987 letter does not assist the Veteran's case here. First, the letter predates, by more than one year, the date of the Veteran's claim for an increased rating. As a general rule, the effective date of an award for compensation benefits is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). However, when VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, then, the Board may grant an increase as far back as March 30, 2003, provided it is factually ascertainable that an increase in disability occurred within that timeframe (e.g. from March 30, 2003, to March 29, 2004). The August 1987 letter may not be used as a basis for an increased rating for the period before the Veteran filed his claim (before March 30, 2003) because it is not evidence that an increase in severity occurred within the timeframe from March 30, 2003, to March 29, 2004. Accordingly, a compensable rating is not warranted for the period before March 30, 2004, because there is no evidence that an increase in severity occurred within the timeframe from March 30, 2003, to March 29, 2004. The second reason the evidence is unavailing here is that- even if it were considered on its merits-neither the August 1987 letter nor any other evidence in the record shows either that the Veteran's dorsiflexion was at any time before August 21, 2009, less than 15 degrees, or that his palmar flexion was limited in line with his forearm (the required showings for a 10 percent rating). The only evidence in the record, during the relevant time period, that includes range of motion measurements for the Veteran's left wrist was the February 2005 VA examination, which found that the Veteran had 40 degrees of both dorsiflexion and palmar flexion. Though the Board recognizes that the Veteran objected to the adequacy of that examination, because he was confused on that particular occasion, surely the physical measurements taken at the examination were not confounded merely because the Veteran was confused and made statements that he did not intend to make. (Moreover, even if the Board were to throw out the February 2005 VA examination altogether, there is no other evidence in the record to show that at any time before August 21, 2009 either the dorsiflexion of the Veteran's left wrist was limited to 15 degrees or less or the palmar flexion of his left wrist was limited in line with his forearm.) In short, the evidence does not support an increased rating for the period before August 21, 2009. 2. The Period Since August 21, 2009 The Veteran also contends he is entitled to a rating greater than 10 percent for the period since August 21, 2009. The Board has reviewed all the evidence from that time period and finds that the evidence does not support an increased rating. As discussed above, a schedular rating in excess of 10 percent for a wrist disability is only warranted where there is ankylosis (favorable or otherwise) of the wrist. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Here, there is no evidence (lay or medical) to indicate that the Veteran has ankylosis of the left wrist. The only medical evidence-from the relevant time period-that evaluated the Veteran's left wrist was the August 2009 VA examination. That examination made no findings of ankylosis. Nor does the Veteran appear to claim, anywhere in the record, that he has ankylosis of the left wrist. Accordingly, a schedular rating in excess of 10 percent for the Veteran's left wrist disability is not warranted. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra- schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the regular schedular ratings are not inadequate. First, the Board notes that the regular ratings provide for higher ratings for the Veteran's service- connected disability but that evidence supporting higher ratings has not been submitted. Second, even if it were to be concluded that the schedular criteria were inadequate, the Veteran has not shown that his service-connected disability has required frequent periods of hospitalization or has produced marked interference with his employment. On no occasion did an examiner opine that the Veteran was not fit to go to work because of his service-connected disability. Nor does the Veteran appear to have argued at any point that he his left wrist disability has significantly interfered with his employment (or his potential employment). In fact, at the Veteran's VA examination in February 2005, the Veteran reported that his wrist disability did not interfere with his ability to perform his various job duties. The Board finds that the disability ratings recognized herein are not an unfair or inaccurate assessment of the effect the Veteran's service-connected disability has on his employment (or his potential employment). Accordingly, because this case does not present a truly "exceptional or unusual disability picture," referral of the case for consideration as to whether an extra-schedular rating should be assigned is not warranted. The Board has likewise considered whether to assign staged ratings (separate ratings assigned for separate time periods). See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Board finds, however, that there is no need to apply staged ratings in this case because the weight of the credible evidence shows that the Veteran's service-connected left wrist disability was 0 percent disabling before August 21, 2009; and that it has been no more than 10 percent disabling since August 21, 2009. Finally, the Board has considered the Veteran's assertion of pain in the left wrist. The Board finds that the ratings recognized herein adequately provide for the Veteran's pain, in addition to any loss of range of motion that he experiences. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In arriving at these conclusions, the Board has applied the reasonable doubt doctrine and has given the Veteran the benefit of the doubt wherever permissible. See 38 C.F.R. § 4.3; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). As such, a rating in excess of 10 percent for a left wrist disability, to include a compensable rating prior to August 21, 2009 is denied on both a schedular basis and on an extraschedular basis. ORDER A rating in excess of 10 percent for a left wrist disability, to include a compensable rating prior to August 21, 2009, is denied. ____________________________________________ Matthew W. Blackwelder Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs