Citation Nr: 1019178 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 04-05 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 10 percent for service connected post-operative ganglion cyst in the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Shabnam Keyvan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision dated in April 2002 of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2008, the Board remanded the Veteran's claim for an increased rating for his left wrist for further procedural and evidentiary development. In essence, the January 2008 Board remand instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination with an appropriate specialist in order to determine the nature and severity of his service-connected left wrist disorder. The AOJ was then instructed to readjudicate the claim. In March 2008, the VA Appeals Management Center (AMC) provided the Veteran with a letter informing him that he would be scheduled for an examination in connection with his appeal at the VA medical facility nearest to him. In March 2008, the AMC initiated a request for the Veteran be scheduled for a VA examination of the joints to determine the current severity of his service-connected left wrist disorder. The examination was completed in April 2008, and a copy of the VA examination report has been associated with the Veteran's claims file. The AMC subsequently readjudicated the claim in the January 2010 Supplemental Statement of the case (SSOC). Thus, all of the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular evaluation for limitation of motion of the minor wrist, and his service-connected post-operative ganglion cyst of the left wrist is not manifested by impairment of the ulna, impairment of the radius, loss of supination and pronation, or ankylosis. 2. The Veteran's service-connected post-operative ganglion cyst of the left wrist does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The schedular criteria for an increased evaluation for service-connected post-operative ganglion cyst of the left wrist have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5211-5215. 2. The criteria for referral of the service-connected post- operative ganglion cyst of the left wrist for consideration on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assure that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Merits of the Claim The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected post-operative ganglion cyst of the left wrist. For the reasons that follow, the Board concludes that an increased rating is not warranted. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2009). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Several of these Diagnostic Codes evaluate a forearm or wrist disability based on whether the affected extremity is major or minor, i.e., dominant or subordinate. 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. As demonstrated by the medical evidence of record, the Veteran is right-handed and as such, minor, as opposed to major, wrist disability ratings are applicable. 38 C.F.R. § 4.69. The Veteran's service connected post-operative ganglion cyst of the left wrist, is rated under Diagnostic Code 5215. See 38 C.F.R. § 4.71a (2009). Diagnostic Code 5215 provides for a maximum disability rating of 10 percent for limitation of motion of the wrist with dorsiflexion of less than 15 degrees or palmar flexion limited in line with the forearm. 38 C.F.R. § 4.71a. Consequently, an increased rating under Diagnostic Code 5215 is not available. Nevertheless, the Board has also considered whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. Diagnostic Code 5214 provides a 20 percent disability rating for favorable ankylosis in 20 to 30 degrees of dorsiflexion for the minor extremity. Diagnostic Code 5213 addresses impairment of supination and pronation and provides for a 10 percent evaluation where supination is limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5213. When pronation is lost beyond the middle or last quarter of the arc and the hand does not approach full pronation, a 20 percent evaluation is assigned. Ratings are also available for ulnar and radial bone impairment. Impairment of the ulna is rated under DC 5211. 38 C.F.R. § 4.71a. Impairment of the radius is rated under DC 5212. Id. In light of the Veteran's medical history, his disability did not involve an ulnar or radial bone injury. As a result, these Diagnostic Codes are not applicable. In this regard, based on the Veteran's April 2008 VA examination report and his February 2005 and July 2005 VA treatment records, the Veteran has not been shown to have ankylosis of the wrist, impairment of the ulna, impairment of the radius, or impairment of supination and pronation. In fact, the April 2008 VA examination found his left wrist to have dorsiflexion to 50 degrees with pain at 50 degrees, palmer flexion to 60 degrees with pain at 60 degrees, radial deviation to 15 degrees with pain at 15 degrees, and ulnar deviation to 40 degrees with pain at 40 degrees. During passive range of motion testing, the Veteran was shown to have dorsiflexion to 70 degrees, palmer flexion to 80 degrees, radial deviation to 20 degrees and ulnar deviation to 45 degrees. There was no change in function noted with repetitive range of motion testing and the Veteran had negative Tinel and Phalen signs. Based on the passive range of motion findings, the Veteran had normal range of motion of the wrist. See 38 C.F.R. §4.71, Plate I. These findings do not indicate that the Veteran's joint was immobile or fixed in place. 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)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990). The VA examiner found the Veteran's surgical scar from the ganglion cyst removal operation to be well healed and nontender and noted that there was no attachment, no loss of underlying tissue and no evidence of any type of recurrent subcutaneous lesion around the scar. The Veteran also underwent an X-ray of his left wrist during the April 2008 VA examination, the results of which showed he had mild degenerative changes of the first carpal metacarpal joint. However, the examiner also noted that the bones and joints of the left wrist are otherwise unremarkable. She further concluded that there was no medical evidence to suggest that the Veteran's medical history of having a ganglion cyst removed would lead to degenerative joint disease of the wrist. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5211, 5212, 5213, and 5214. Additionally, as the record contains no evidence showing that the Veteran is entitled to a higher rating for his service- connected post-operative ganglion cyst of the left wrist at any point during the instant appeal, no staged ratings are appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the Board finds that the current 10 percent evaluation is appropriate for the entirety of the rating period. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The Board has also considered, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased evaluation for the Veteran's service-connected post-operative ganglion cyst of the left wrist is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the 10 percent rating already assigned. In this regard, the Board observes that the Veteran complained of constant swelling, numbness and weakness in his left wrist. The Veteran denied any instances of fatigability explaining that he "just tries to not use the wrist," and he also denied any flare-ups stating that these symptoms are constant. However, the effect of the weakness, numbness and pain in the Veteran's post-operative ganglion of the left wrist are contemplated in the currently assigned 10 percent disability evaluation under Diagnostic Code 5215. Indeed, the April 2002 rating decision, the January 2004 SOC, and the April 2005, May 2006, May 2007, and January 2010 SSOCs specifically contemplated this pain, numbness and functional loss in the grant of the 10 percent disability evaluation under Diagnostic Code 5215. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Although the April 2008 VA examiner noted that there was evidence of pain following range of motion testing, he also stated that the Veteran's effort in range of motion was questionable, and there was no change in function noted upon repetitive motion. II. Extraschedular Consideration The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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. Under the approach prescribed by VA, if the criteria reasonably describes the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned scheduler evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The VA examiner noted that the Veteran has been unemployed since 1988. However, the Veteran has never asserted that he is unable to work as a result of his left wrist disorder. While he complained that his wrist felt weak and affected how he conducted certain daily activities, as well as his ability to bowl and play golf, the contention that he had been rendered unemployable as a result of his left wrist disorder was never raised. In addition, the objective evidence does not show that the Veteran is unable to obtain any form of employment as a result of his left wrist disorder. The Board therefore finds that the schedular evaluation for the Veteran's left wrist disorder is not inadequate. His complained of symptoms are those contemplated by Diagnostic Code 5215 and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or different from those contemplated by the schedular criteria. The Board finds the available schedular evaluations for the Veteran's service- connected post-operative ganglion cyst removal to be adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased evaluation for his post-operative ganglion cyst of the left wrist. III. The VCAA VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant 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); 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. A letter dated in July 2003 satisfied the duty to notify provisions concerning increased rating claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran's claim was subsequently readjudicated in the January 2004 Statement of the Case (SOC), as well as the April 2005, May 2006 and May 2007 Supplemental Statements of the Case (SSOCs). The Veteran received notice of the Court's decision in Dingess in the March 2008 letter; after the initial adjudication and multiple readjudications of the Veteran's claim. Although this letter was not sent prior to initial adjudication and multiple readjudications of the Veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice and was provided nearly two years to respond with additional argument and evidence and the claim was readjudicated and an additional SSOC was provided to the Veteran in January 2010. See Prickett v. Nicholson 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Concerning the April 2008 VA examination obtained upon remand, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2008 VA examination report reflects that the examiner reviewed the Veteran's complete claims file, to include his service treatment records and VA treatment records. In assessing the level of disability of the Veteran's service-connected left wrist disorder, the examiner reviewed the Veteran's medical history, recorded his current complaints, and conducted an appropriate physical examination before rendering an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board therefore concludes that the Veteran's claim can be adjudicated on the evidence of record. See 38 C.F.R. § 4.2 (2009). The Veteran and his representative have not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An evaluation in excess of 10 percent for post-operative ganglion cyst of the left wrist is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs