Citation Nr: 1120434 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 08-04 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for residuals of a status post right navicular fracture prior to January 29, 2010. 2. Entitlement to a rating greater than 10 percent for residuals of a status post right navicular fracture since January 29, 2010. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from October 1983 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the July 2006 rating decision, the RO granted service connection for a right wrist fracture and assigned a noncompensable rating effective February 1, 2006, the day after the Veteran's discharge from service. He disagreed and, by decision dated in February 2011, the RO increased the rating to 10 percent effective January 29, 2010, the day of the most recent VA examination. Where a veteran has filed a notice of disagreement (NOD) as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the Veteran's right wrist rating claims, both prior to and since January 29, 2010, remain before the Board. This case was previously before the Board in November 2009 at which time the claim was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran is right-hand dominant; therefore, his right wrist is part of his major upper extremity. 2. Prior to January 29, 2010, the right wrist disability was manifested by mild limitation of motion and complaints of pain. 3. Since January 29, 2010, the right wrist disability has been manifested by moderate limitation of motion and complaints of pain. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of a status post right navicular fracture prior to January 29, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.69, 4.71a, Diagnostic Codes (DCs) 5299-5215 (2010). 2. The criteria for a rating greater than 10 percent for status post right navicular fracture since January 29, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.69, 4.71a, DCs 5299-5215 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the Veteran's assertion that his service-connected right wrist fracture is more disabling than evaluated both prior to and since January 29, 2010. Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's right wrist disorder is currently rated under DCs 5299-5215. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded the number of the most closely related body part and "99." In this case, the hyphenated code indicates that the disability is evaluated as limitation of motion of the wrist. Under DC 5215, a 10 percent rating is warranted when palmar flexion is limited to a position in line with the forearm, or when dorsiflexion is less than 15 degrees. This 10 percent rating is applicable for either the major or minor limb. A 10 percent rating is the only, and therefore the maximum, rating available under this code. As the Veteran is already receiving the maximum evaluation allowable under DC 5215 since January 29, 2010, the Board must also consider DC 5214, which provides for higher evaluations for ankylosis of the wrist. Under this code, a 40 percent rating is warranted when there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation of the minor wrist. A 30 percent rating is warranted when there is ankylosis of the minor wrist in any other position, except favorable. Finally, a 20 percent rating is warranted when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the minor wrist. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Normal range of motion is: dorsiflexion (extension) to 70 degrees, palmar flexion to 80 degrees, ulnar deviation to 45 degrees, and radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. Here, as the medical evidence shows that the Veteran is right-hand dominant, for rating purposes, his right wrist is part of his major upper extremity. "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). There are two periods of time at issue here: prior to, January 29, 2010, for which the RO has assigned a noncompensable rating; and since January 29, 2010, for which the RO assigned a 10 percent rating. Prior to January 29, 2010 Evidence relevant to the level of severity of the Veteran's right wrist disorder prior to January 29, 2010, includes VA examination reports dated in December 2005 and June 2006. During the December 2005 VA examination, the examiner noted that a review of the Veteran's service treatment records noted a rugby injury 15 years earlier where he fractured his navicular or scaphoid bone. It was treated appropriately with casting and splinting for a couple of months and seemed to have good results, but he periodically had some pain in his wrist area over the following years, and was subsequently found to have a nonunion of the scaphoid bone. At that time, it was decided that the Veteran would see how things go rather than consider surgery which may not be helpful. However, after another six months the right wrist worsened with pain and weakness and so it was decided to try a surgical procedure, to use bone graft from his right hip and to place with a screw and a pain with the scaphoid bone. This surgery was performed in December 2005, only one day prior to the VA examination. The Veteran was wearing a surgical splint and the examiner indicated that it was too early to tell exactly how the Veteran's right wrist would react to the surgery. The examiner indicated that the Veteran should be evaluated again in six to eight months to see what residuals, if any, he had after surgery and hand therapy could be performed. At the time of the December 2005 VA examination, the Veteran was able to shave with his left hand, dress himself, and feed himself; however, he did have difficulty writing, but he was able to do so with his left hand and was able to use the toilet and perform other activities of daily living. Prior to the surgical procedure, he had persistent pain and weakness from the thumb up in his wrist to the snuffbox area. He had an X-ray in August 2005 which showed an old ununited fracture through the scaphoid, mild diffuse osteopenia, and no significant degenerative changes. In 2003, he had an X-ray that did not show any evidence of avascular necrosis with the nonunion fracture through the mid portion of the scaphoid bone. The impression was nonunion right navicular (scaphoid fracture, status post surgical grafting procedure and should be reevaluated in six to eight months). It was reiterated that no further evaluation could be done because the Veteran had just had surgery one day earlier. During the June 2006 VA examination, the Veteran reported that he fractured his right wrist during service while playing sports. The wrist was initially casted and the cast was removed a couple of months later. This resulted in a nonunion and pain with gripping or with pounding things like a hammer that became progressively worse over the years. In December 2005, he had surgery in which they did an autograft in the right hip and put in a screw (ORIF). The cast for this surgery was removed in December 2005. The Veteran still had stiffness and had some stretching instructions from the surgeon, but was not yet ready to go to physical therapy. He complained of aching discomfort which occurred a couple of times each week, lasting less than an hour with an occasional sharp pain. Again, it remained stiff since the surgery. There was no weakness, swelling, heat, redness, discharge, instability, or locking. The Veteran had been told that it would not go back to baseline range of motion, but that it would improve perhaps with physical therapy. He wore a brace to rest in the long term and took it out and stretched it p.r.n. (as needed). He stated that his right wrist disorder made it difficult to work at the computer as he was right-hand dominant. His right wrist disorder also made it difficult to wipe himself as he was not as good at it with the left hand. It was also more difficult to eat with his left hand. The Veteran was not working at the time of the examiner as he only recently retired from the United States Air Force after 22 year of service in February 2006. The examiner noted that the last orthopedic notation recommended six to eight more weeks of splinting after March 2006. On physical examination, the Veteran had 0 to 50 degrees of dorsiflexion, 0 to 60 degrees of palmar flexion, 0 to 10 degrees of radial deviation, and 0 to 30 degrees of ulnar deviation. All movements were limited by difficulty. It was noted that he had a 4.5 cm. surgical scar on the volar aspect of the wrist toward the ulnar side consistent with the navicular surgery. The scar "look[ed] good" and moved freely with the surrounding skin. It was not tender and there was no excoriation or induration. There was no swelling, redness, or heat and no keloid. The scar was also flat without tissue loss. Regarding DeLuca provisions, the examiner noted that additional limitations due to repetitive use or flare-ups could not be determined without resorting to mere speculation. There was no discomfort or difficulty with range of motion testing and there was no effusion, edema, erythema, tenderness, palpable deformities, or instability found except as noted. It was further noted that the Veteran was independent with regard to his ADLs (activities of daily living). He was retired at the time of the examination and the examiner noted that no disability on this examination would impair the Veteran's activities of daily living significantly or prevent employability. The diagnosis was status post right navicular fracture (wrist), status post ORIF with autograft and screw placement, residuals functional limitation. Also of record are VA treatment notes and military hospital records dated from November 2005 through December 2009. These records show treatment for the Veteran's right wrist disorder, to include operative reports dated in December 2005 and April 2007. The December 2005 operative report shows that he underwent open reduction and internal fixation, right scaphoid nonunion with opening wedge iliac crest bone graft with a pre and post-operative diagnosis of right scaphoid nonunion. The April 2007 operative report shows that the Veteran underwent excision of radial styloid, osteophyte, and bone spur; excision of scaphoid osteophyte and bone spur; and hardware removal of right scaphoid Acutrak screw with operative diagnoses of right wrist radial styloid pain with radial styloid osteophyte and scaphoid screw prominent with slight pain. Given the above, the Board finds that an initial compensable rating prior to January 29, 2010, is not warranted for a right wrist disability. As above, a 10 percent rating under DC 5215 requires evidence of dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. However, he had 0 to 50 degrees of dorsiflexion and 0 to 60 degrees of palmar flexion during the June 2006 VA examination. Thus, a higher (compensable) rating is not warranted under DC 5215. While recognizing that the Veteran has complaints of pain, as described above, the record does not reflect evidence of additional impairment of his right wrist upon clinical examination, as caused by such pain, weakness or related factors. While the record reflects his complaints of pain on use, the objective evidence of record indicates no additional limitation of motion for all ranges of motion. The June 2006 VA examiner indicated that additional limitations due to repetitive use or flare-ups could not be determined without resorting to mere speculation. Therefore, although the Board has no reason to doubt that the Veteran suffers from painful flare-ups, the Board is unable to identify any clinical findings which would warrant an increased (compensable) rating under 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board has also considered other rating criteria to determine whether a higher rating is warranted. However, with no evidence of ankylosis of the wrist, a higher rating is not warranted under DC 5214. Since January 29, 2010 Evidence relevant to the level of severity of the Veteran's right wrist disorder since January 29, 2010, includes a VA examination report dated in January 2010. At that time it was reported that he was employed as a contractor/management after retiring from service in 2006. He denied doctor-prescribed bedrest or incapacitation in the last twelve months. There were no reported impediments to activities of daily living and he reported that impediments to his usual occupation included overuse of the right wrist with typing on computer at home which causes flare-up of pain four days of the week lasting from 30 minutes to two days. During this examination, the Veteran reported a history of right wrist sports injury fracture in May 1990. He underwent ORIF navicular fracture surgery in 2005 with internal removal of the fixation screw in 2006. The surgery results were, reportedly, not successful. He had residual pain, decreased dexterity, and decreased range of motion. He could not perform pushups and pull ups were restricted. He indicated that carrying items or hammer usage made it worse. Symptoms included flare-ups with a pain level of 4-5/10, and occurred depending on utilization four days a week with a duration less than 30 minutes up to 2 days depending on utilization of the wrist. The location was the radial wrist and functional limitation occurred with overuse. Physical therapy after surgery did not help. The Veteran denied injections but did use Aspirin and Tylenol as needed. It was noted that two times per week, he had referral to orthopedic for follow-up. The wrist brace did reportedly help some, and he indicated that he used the brace when having to work outside. On musculoskeletal examination, the examiner indicated that the Veteran was right hand dominant times three. He had normal posture and gait and did not use assistive devices. There were no amputations or prosthetics and the back and neck were bilaterally symmetric without gross scoliosis, not exaggerated kyphosis or lordosis. There were palpable spasms or tenderness. Deep tendon reflexes were 1/4 equal bilaterally for biceps, brachioradialis reflexes. There was no atrophy or hypertrophy. Strength testing was 5/5 to gravity and resistance within normal limits for age and bilaterally equal. Grip strength was +5/5. Range of motion testing revealed tenderness of the radial wrist and was limited with pain and stiffness. The Veteran had dorsiflexion from 0 to 30 degrees, palmar flexion from 0 to 50 degrees, radial deviation of 0 degrees (he was unable to move at all), and ulnar deviation from 0 to 25 degrees. Phalen's and Tinel's were both negative. There was no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness or instability, except as noted. There was also no additional limitation of motion, after at least three repetitions, except as noted. Additional limitation due to flare-ups could not be determined with resorting to mere speculation. X-ray examination of the right wrist revealed status post ORIF navicular fracture with interval removal of the fixation screw with posttraumatic residuals noted in the radial styloid and distal navicula. The diagnosis was right navicular fracture, status post surgery with residual limited motion. Given the evidence of record, the Board finds that a rating greater than 10 percent since January 29, 2010, is not warranted. As above, he is already in receipt of the maximum schedular rating under DC 5215 for a wrist disability. While DC 5214 affords a 20 percent rating when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion in the minor wrist, the Board observes that there have been no clinical findings at any time of right wrist ankylosis for which a higher rating might be warranted. As above, during the January 2010 VA examination, the Veteran had dorsiflexion from 0 to 30 degrees, palmar flexion from 0 to 50 degrees, radial deviation of 0 degrees (he was unable to move at all), and ulnar deviation from 0 to 25 degrees. Also, since the Veteran already receives the maximum rating possible under DC 5215, the analysis required by DeLuca would not result in a higher schedular rating. Moreover, the January 2010 VA examiner indicated that there was no additional limitation of motion, after at least three repetitions, except as noted, and that additional limitation due to flare-ups could not be determined with resorting to mere speculation. The Board also finds that no higher evaluations can be assigned pursuant to any other potentially applicable diagnostic codes. Because there are specific diagnostic codes to evaluate the wrist, consideration of other diagnostic codes for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability); Butts v. Brown, 5 Vet. App. 532 (1993). The Board has also considered his statements that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of this disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's right wrist disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against an initial compensable rating and a rating greater than 10 percent since January 29, 2010, for residuals of a status post right navicular fracture. Extra-schedular Consideration Next, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). As above, the record shows that the Veteran currently employed as a contractor/manager. There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's right wrist disability. The competent evidence of record shows that his right wrist disorder is primarily manifested by pain, tenderness and limitation of motion. The applicable diagnostic codes used to rate the right wrist provides for ratings based on limitation of motion. Furthermore, the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the right wrist disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Notice and Assistance Finally, 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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) (West 2002). 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 rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's right wrist claim arises from his disagreement with 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. As to VA's duty to assist, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded him adequate physical examinations, obtained medical opinions as to the severity of his disability, and afforded him the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issue on appeal have been obtained and associated with the claims file; and he has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). ORDER An initial compensable rating for residuals of a status post right navicular fracture prior to January 29, 2010, is denied. A rating greater than 10 percent for residuals of a status post right navicular fracture since January 29, 2010, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs