Citation Nr: 1046629 Decision Date: 12/13/10 Archive Date: 12/20/10 DOCKET NO. 08-26 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for status post fracture of the left wrist and hand with degenerative joint disease of the left wrist and hand (left wrist condition). 2. Entitlement to an initial evaluation in excess of 10 percent for neurological residuals of status post fracture of the left wrist and hand (neurological residuals). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1959. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for status post fracture of the left hand with degenerative joint disease, assigning a noncompensable (0 percent) evaluation, effective September 26, 2006. In a September 2010 rating decision, the Appeals Management Center (AMC) divided this claim into two compensable evaluations: increasing the initial evaluation of the status post fracture of the left wrist and hand with degenerative joint disease of the left wrist and hand claim to 10 percent and granting service connection for neurological residuals of status post fracture of the left hand and wrist with a separate 10 percent evaluation, both effective September 26, 2006. Inasmuch as a higher rating is available than those assigned in the September 2010 rating decision, and as a claimant is presumed to be seeking the maximum available benefit for a given disability, the claim for higher initial ratings as reflected on the title page remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2009. A transcript of the hearing is associated with the claims file. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2008). In August 2009, the Board remanded this case for further development. FINDINGS OF FACT 1. The Veteran's left wrist condition is characterized by noncompensable limitation of motion and x-ray evidence of arthritis, but not by incapacitating exacerbations. 2. The Veteran's neurological residuals are characterized by numbness, sensitivity to weather, and a positive Tinel's sign at the wrist. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent for service connected left wrist condition are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5010 (2010). 2. The criteria for an evaluation in excess of 10 percent for service connected neurological residuals are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (DC) 8515 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 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 about the 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). These notice requirements apply to all five elements of a service connection claim, including disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be provided prior to the initial decision on a claim for VA benefits. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by a subsequent content-complying notice and readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In this case, the Veteran's PTSD claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note that basis of the prior determination. However, the Veteran's representative began his line of questioning by eliciting testimony from the Veteran regarding his current symptoms, which is the necessary element for a claim for increased initial evaluation. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim by eliciting testimony regarding whether there was any increase in the severity of the Veteran's symptoms or periods of flare-ups and by asking the Veteran to describe the portion of his hand that was affected by his reported numbness. These questions in part addressed the associated neurological symptoms that were later rated as a separate disability. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim for a higher initial rating and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. Specifically, he discussed his symptoms including numbness, sensitivity to weather, and decreased grip strength. As such, the Board finds that, consistent with Bryant, VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The August 2009 Board remand noted an inconsistency in the July 2007 examination, specifically that it described x-rays of the right hand and wrist, not the left hand and wrist that are at issue, and instructed the AMC to return the folder to that examiner for clarification or, alternately, to schedule the Veteran for a new VA examination. While clarification of those x-rays has not been completed, the AMC did schedule the Veteran for a VA examination, in compliance with this remand. The Veteran underwent this examination in December 2009. Thus, VA has complied with the August 2009 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Regarding the duty to assist, the Board is not aware of the existence of additional relevant evidence in connection with the Veteran's claims that VA has not sought. Service treatment records, VA medical examination results, and statements of the Veteran and his representatives have been associated with the record. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. In December 2006, the Veteran indicated that he had no other information or evidence to submit in conjunction with this claim. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. The Evidence As noted in the introduction, the September 2007 rating decision granted the claim for connection for status post fracture of the left hand with degenerative joint disease, assigning a non- compensable (0 percent) evaluation, effective September 26, 2006. The Veteran appealed that rating decision. See Fenderson v. West, 12 Vet. App. 119 (1999). In September 2010, the Appeals Management Center (AMC) divided this claim into the two issues currently on appeal, evaluating both as 10 percent disabling, effective September 26, 2006. As the evidence gathered regarding these issues overlaps, it will be discussed just once, here. The Veteran initially underwent a VA medical examination in conjunction with this claim in July 2007. At that time, the Veteran complained of slight numbness, especially of his left second finger with less numbness of the rest of the median nerve distribution; stiffness in his left second finder; inability to completely flex his left second finger; and sensitivity to cold weather. The examiner noted that the Veteran was right-handed and that he could not completely close his left second finger. He was able to make a full fist except that the left second finger came within 1/4 inch of his palm. He had full ulnar and radial deviation movement for each finger and full extension. There was no tenderness of his metacarpals and no interference with his activities of daily living. The Veteran was sent for x- rays; however, the results received refer to his right hand and wrist. In June 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. During his testimony, the Veteran stated that he had very little feeling on the pointer finger, sensitivity to cold and damp weather, and decreased grip strength. He complained of dropping things. He said he treated his symptoms with aspirin. He also testified that he had a sweating problem with this hand that was eventually resolved through injections. He further stated that the numbness and decrease in grip strength had worsened. The Veteran's wife also testified at the June 2009. She stated that the Veteran had discomfort in his left hand since she met him, a few years after he separated from service. She stated that it was getting progressively worse as he ages and that he had trouble with tasks like bringing out clothes and hanging onto a pot. The Veteran underwent a second VA medical examination in December 2009. Again the Veteran was noted to be right-handed. At that time, the Veteran complained of numbness over digits 1, 2, and 3; some pain; some weakness; decreased grip strength; difficulty making a fist; sensitivity to cold weather; and a history of hyperhidrosis, which had resolved. He reported no flare-ups or incapacitating episodes, no interference with employment or activities of daily living, and no problems with repetitive use. A physical examination revealed a U-shaped scar over the volar distal forearm just above the wrist crease. The Veteran's range of motion of the left wrist was noted to be equal to his range of motion of the right wrist and was measured as supination from zero to 80 degrees, pronation from zero to 80 degrees, dorsiflexion from zero to 60 degrees, palmar flexion from zero to 60 degrees, radial deviation from zero to 20, and ulnar deviation from zero to 40, which was noted to be normal for his age group. His grip strength was 5/5. There was a deformity over the second metacarpophalangeal (MCP) joint. He was able to make a fist. MCP, proximal interphalangeal, and distal interphalangeal joints of all digits had extension to zero degrees and flexion to 90 degrees. Pinch strength between the thumb and each of the four other digits was 5/5. Sensation was decreased over digits 1, 2, and 3. There was a positive Tinel's sign at the wrist. The examiner noted that after repetitive motion there was no additional limitation of joint function due to pain, fatigue, or lack of endurance. X-rays taken at the time of the examination found an apparent healed fracture deformity of the proximal diametaphysis of the second metacarpal; mild to moderate multilevel degenerative changes with the left hand and wrist; generalized osteopenia of the visualized bony structures, an oval-shaped osseous density projecting over the region of the hamate which is nonspecific with differential including but not limited to heterotopic ossification, loose intraarticular body or chrondroid lesion; and no definite acute displaced fracture. Left Wrist Condition The Veteran's left wrist condition is currently evaluated as 10 percent disabling, under Diagnostic Code 5010 for traumatic arthritis, which is rated under the same criteria as degenerative arthritis under Diagnostic Code 5003 based on limitation of motion of the affected joint or based on x-ray findings. The December 2009 VA examination showed a loss of five degrees supination, 10 degrees dorsiflexion, 20 degrees palmar flexion, and five degrees ulnar deviation compared to the full range of motion for the wrist. See 38 C.F.R. § 4.71a, Plate I. However, this limitation of motion is insufficient to warrant a compensable evaluation for limitation of motion of the wrist under Diagnostic Code 5229. See 38 C.F.R. § 4.71a. Similarly, the Veteran had full range of motion for all digits of the left hand. Absent a showing of compensable limitation of motion, traumatic arthritis is evaluated based on x-ray findings. Id. The current 10 percent evaluation reflects x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5003. The next higher evaluation of 20 percent requires x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups with evidence of incapacitating exacerbations. While the x-ray evidence described above shows degenerative changes in the left wrist and hand, but no incapacitating episodes were noted. As the evidence does not show compensable limitation of motion or incapacitating exacerbations, the Board finds that an initial disability rating in excess of 10 percent for left wrist condition is not warranted. 38 C.F.R. § 4.7. Consideration has been given to assigning a staged rating; however, at no time during the initial rating period in question has the Veteran's left wrist disability warranted more than a 10 percent disability rating. See Fenderson, 12 Vet. App. 119. Neurological Residuals The Veteran's neurological residuals are currently evaluated as 10 percent disabling, under Diagnostic Code (DC) 8515, for mild incomplete paralysis of the median nerve. See 38 C.F.R. § 4.124a. As the record indicates that the Veteran is right- handed, this left hand disability is rated as a disability of the minor extremity. In order to warrant the next higher evaluation of 20 percent, the Veteran's incomplete paralysis of the median nerve must be moderate. Complete paralysis is defined as inclination of the hand to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. Id. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Based on the evidence described above, the Board finds that the Veteran's neurological residuals most nearly approximate the criteria for a 10 percent evaluation. The Veteran's neurological symptoms include numbness, sensitivity to weather, and a positive Tinel's sign at the wrist. However, there is no evidence of ape hand; no evidence of weakened flexion of the wrist; and the Veteran he demonstrated full pronation and is able to make a fist. Cf. 38 C.F.R. § 4.124a, DC 8515. While the July 2007 VA examination found that his ability to make a fist was slightly diminished in that he left second finger came within 1/4 inch of his palm, that was not shown on the December 2009 examination. Regardless, this is not tantamount to a second left finger that remains extended. As the evidence shows sensory symptoms only, the Board finds that an initial disability rating in excess of 10 percent for neurological residuals is not warranted. 38 C.F.R. § 4.7. Consideration has been given to assigning a staged rating; however, at no time during the initial rating period in question has the Veteran's neurological symptomatology warranted more than a 10 percent disability rating. See Fenderson, 12 Vet. App. 119. Extraschedular Considerations There is no basis for consideration of an extraschedular evaluation for either of the Veteran's service connected disabilities. An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The record does not show any hospitalization due to these disabilities. The Veteran has not alleged and the record does not show that these disabilities have affected his employment. Indeed, both VA examinations found that there was not affect on the Veteran's employability. In this case, the schedular evaluation in is not inadequate. An evaluation in excess of those assigned is provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case. As such, extraschedular referral is not in order here. ORDER Entitlement to an initial evaluation in excess of 10 percent for status post fracture of the left wrist and hand with degenerative joint disease of the left wrist and hand is denied. Entitlement to an initial evaluation in excess of 10 percent for neurological residuals of status post fracture of the left wrist and hand is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs