Citation Nr: 1038643 Decision Date: 10/14/10 Archive Date: 10/22/10 DOCKET NO. 05-12 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for tendonitis of the left (major) wrist and forearm, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to May 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. When the case was before the Board in February 2009, it was remanded to the Appeals Management Center (AMC) for additional development. That development has been accomplished, and the case has been returned to the Board for appellate action. The the issues of entitlement to service connection for right arm, neck and bilateral knee disorders have been raised by the record, but have not been adjudicated by the RO. Therefore, they are referred to the RO for appropriate action. FINDING OF FACT The Veteran's tendonitis of the left (major) wrist and forearm is manifested by pain; the wrist is not ankylosed. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for tendonitis of the left (major) wrist and forearm have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5024, 5214, 5215 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking a disability rating in excess of 10 percent tendonitis of the left wrist and forearm. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the disability rating and effective date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letters mailed in June 2004 and March 2009. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also notes that service treatment and personnel records have been obtained, as well as pertinent VA medical records. Moreover, the Veteran has been afforded appropriate VA examinations in response to her claim. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In its February 2009 remand, the Board instructed the originating agency to obtain any pertinent VA outpatient records for the period since February 2005 and to provide an appropriate VA examination, performed by a physician, in connection with the Veteran's claim. Pursuant to those remand instructions, the Veteran was afforded a VA examination in September 2009. The Board finds that the AMC substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) ("substantial compliance" rather than "strict compliance" is required under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146- 47 (1999)). The Board acknowledges that the examination was conducted by a physician's assistant, despite the remand directive specifying a physician. The VA examination report is thorough and fully addresses the criteria relevant to the Veteran's disability. There would be no useful purpose in remanding this case for an additional examination, as the results unequivocally demonstrate the Veteran's level of functioning. Thus, the Board concludes that all development ordered by the Board has been substantially completed by the originating agency. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability there from are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). The Veteran is assigned a 10 percent rating for tendonitis of the left wrist and forearm. Historically, service connection was granted in an October 2000 rating decision, and a 10 percent rating was assigned by analogy under Diagnostic Codes (DC's) 5214-5024. She filed the instant claim for increase in June 2004, and it was denied in January 2005 as previously indicated. The Board notes parenthetically that service connection for bilateral carpal tunnel syndrome was denied in May 2005, and that issue is not on appeal. This disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. See 38 C.F.R. §§ 4.20, 4.27 (2009). Therefore, the Veteran's service- connected left wrist and forearm tendonitis is rated according to the analogous condition of ankylosis of the wrist and tenosynovitis under Diagnostic Codes 5024-5214. Tendonitis disability is rated on limitation of motion of the affected part, as arthritis under Diagnostic Code (DC) 5003. 38 U.S.C.A. § 4.71a, DC 5024. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. 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 objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, to be combined, not added under DC 5003. Limitation of wrist motion is rated under DC 5215. Under DC 5215, for a major (dominant) joint, dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm warrants a maximum 10 percent rating. Under DC 5214, a 30 percent rating is warranted for favorable ankylosis of the major wrist with 20 to 30 degrees dorsiflexion. That diagnostic code also directs that extremely unfavorable ankylosis be rated as loss of use of hands under DC 5125, which provides for a single 70 percent rating for loss of use of the major hand. 38 C.F.R. § 4.71a (2009). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare- ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In conjunction with her claim for an increased rating, the Veteran was afforded a VA examination of the left upper extremity in August 2004. She complained of left arm numbness from her elbow to the fingers and pain from the shoulder to the wrist. She denied weakness of grip or swelling. She reported a history of carpal tunnel. X-rays in May 2004 showed cervical disc space narrowing consistent with degenerative disc disease. Pain in the left wrist occurred with repetitive twisting movement and improved after rest. There was no affect on daily living. On examination, the left wrist was without swelling and ranges of motion were full, normal and without pain, with no further limitation on repetitive use. Phelan and tinel signs were negative. The diagnosis was left wrist tendonitis with pain in the left wrist into the fingers. History of carpal tunnel was a possible contributing factor as was cervical radiculopathy. Treatment records dated in 2004 include the record of an X-ray study of the left hand showing only slight spurring at the metacarpophalangeal joint of the index finger and a neurology consult showing decreased pinprick sensation in the left upper extremity. The Veteran was given a left wrist splint. EMG and nerve conduction studies in June 2004 confirmed bilateral carpal tunnel syndrome with no evidence of cervical radiculopathy. In September 2004, she was noted to have polyarthralgia and carpal tunnel syndrome. Her pain medication was increased. Physical therapy notes dated from December 2004 to February 2005 show that the Veteran was still working full time and that she was using Ben Gay patches in addition to taking her medication. The Veteran was afforded an additional examination in September 2009. The examiner reviewed the claims folder prior to the examination. The Veteran reported that she worked full time in the computer field and had worked in this field all her life. She experienced a gradual onset of pain in the left wrist, which was described as stable. She was currently receiving no treatment for this condition. The Veteran endorsed pain, stiffness and weakness in the left wrist. She also described swelling and tenderness. Flare-ups, with pain increasing to a 7 or 8 out of 10 occurred weekly and were precipitated by use and physical activity. These were relieved by NSAIDS. The Veteran felt that the flare-ups had no effect on limitation of motion or other functioning. She reported using a brace intermittently to occasionally. The examiner found the wrist to be within normal limits. The Veteran denied pain with range of motion but did report numbness and tingling. The examiner stated these symptoms were due to carpal tunnel syndrome and not tendonitis. On examination, there was full range of motion of the left wrist with dorsiflexion 0 to 70 degrees, palmar flexion 0 to 80 degrees, radial deviation 0 to 20 degrees and ulnar deviation 0 to 45 degrees. There were no objective evidence of pain with active range of motion and no additional limitation with repetitive range of motion. There was no joint ankylosis. The examiner felt that the left wrist tendonitis pain had a significant effect on the Veteran's usual occupation but noted that she continued to work with the pain. She observed no affect on the usual daily activities. In March 2010, the Veteran submitted copies of her service treatment records, written argument and medical literature on the subject of carpal tunnel syndrome. After reviewing the record, the Board finds that the Veteran's tendonitis of the left wrist and forearm does not warrant a rating in excess of 10 percent. The record reflects that the Veteran has experienced pain in the wrist that increased with activity and use. However, there was no additional functional impairment due to weakness, excess fatigability, or incoordination. Considering all functional impairment, the record affirmatively demonstrates that the disability is manifested by more than the limitation of motion contemplated by a 10 percent rating. Range of motion testing has consistently shown full motion of the left wrist. Furthermore, the Veteran's descriptions of her functional impairment, including flare-ups of pain with use, do not indicate that she experiences either favorable or unfavorable ankylosis of the joint, and the medical evidence clearly shows that the wrist is not ankylosed. The Board has considered whether there is any other schedular basis to grant the claim, but has found none. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a rating in excess of the rating discussed above. See Fenderson v. Brown, 12 Vet. App. 119, 126 (1999). Finally, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b). The threshold factor for extra-schedular 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, which involves 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, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board acknowledges the Veteran's contentions that her left wrist and forearm tendonitis interferes with her ability to work. The Board does not doubt that the Veteran's disability has impacted her ability to work. The assigned rating of 10 percent reflects that the disability is productive of impairment in earning capacity. However, there is no indication in the record that the average industrial impairment from her disability would be in excess of that contemplated by the assigned rating, as the manifestations of the disability, including pain on motion and with use, are contemplated by the schedular criteria. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extra-schedular consideration. ORDER Entitlement to an increased rating for tendonitis of the left wrist and forearm is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs