Citation Nr: 1126435 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 07-21 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an extraschedular rating in excess of 30 percent for service- connected right forearm injury, status post surgical repair. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim for a rating in excess of 20 percent for his service-connected right forearm injury, status post surgical repair. In December 2008, the Board remanded the increased rating claim for a hearing. In April 2009, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2009, the Board granted a 30 percent rating for the right forearm injury and remanded the issue of an extraschedular rating to the RO via the Appeals Management Center (AMC). In an October 2009 Supplemental Statement of the Case, the RO/AMC denied an extraschedular rating in excess of 30 percent for the service-connected right forearm injury, status post surgical repair, and returned this issue to the Board. In December 2009, the Board remanded the extraschedular rating matter for further development. FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran's service-connected right forearm injury, status post surgical repair, results in such an exceptional or unusual case as to render the impractical the application of the regular scheduler standards. CONCLUSION OF LAW The criteria for the assignment of an extraschedular rating in excess of 30 percent for right forearm injury, status post surgical repair, has not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in January 2010. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the January 2010 correspondence. With regard to the additional notice requirements for increased rating claims, it is acknowledged that VCAA letters sent to the Veteran earlier in connection with his underlying higher rating claim, especially the May 2008 correspondence, attempted to satisfy specifics of the original Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which required VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence of how the disability affected the Veteran's employment. These letters did advise the Veteran of the criteria necessary to substantiate a higher rating for his service-connected disability. In any event, the Federal Circuit Court recently vacated the Court's previous decision in Vazquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required, and the Veteran did receive such notice. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Further, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist in this matter also has been fulfilled as relevant private and VA medical records have been requested and obtained and the Veteran has been provided with VA examinations for his service-connected right wrist disability. As will be explained later, VA has requested in specified notice letters that the Veteran provide financial data concerning his inability to work, but he has not provided such information. VA has nonetheless provided the Veteran with a review of his case by the Director of the Compensation and Pension Service in accordance with the applicable regulations. The Board finds that the available evidence and the development thereof is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Increased Rating on an Extraschedular Basis - Laws and Regulations Ordinarily, the VA Rating Schedule will apply in increased rating claims unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination of whether a claimant is entitled to an extraschedular rating under section 3.321(b) is a three-step inquiry. 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 C&P Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. at 116. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson a veteran is only competent to report observable symptoms--not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). The Veteran's right forearm injury, status post surgical repair, is currently rated 30 percent, pursuant to Diagnostic Code 5212, for impairment of the radius. Under Diagnostic Code 5212, malunion of the radius with bad alignment is rated 10 percent disabling for both the major and minor side; nonunion of the radius in the upper half is rated 20 percent disabling for both the major and minor side; nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity is rated 30 percent disabling for the major side and 20 percent for the minor side; and nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch (2.5cms) or more) and marked deformity is rated 40 percent disabling for the major side and 30 percent for the minor side. 38 C.F.R. § 4.71a, Diagnostic Code 5212 (2010). The record shows that the Veteran is left-handed. Thus, in rating his service-connected disability, the ratings provided for the minor, as opposed to the major, upper extremity apply. 38 C.F.R. § 4.69 (2010). Therefore, the Veteran is rated at the maximum disability level for his right-wrist disability under Diagnostic Code 5212. Factual Background and Analysis In December 2005, the Veteran filed his claim for a rating in excess of 20 percent for his service-connected right forearm injury, status post surgical repair. He attached private treatment records dated in August 2005, which showed that he had complained of severe pain in his right wrist and significant limitation of motion over the past two years. An examination revealed no obvious deformity, but that the right wrist was tender to palpation throughout the entire radiocarpal joint and that he had limited range of motion. In statements and testimony, the Veteran has contended that he experienced pain and stiffness from his right wrist disability, and that it had caused him to cut back on his self-employment as a barber. In a March 2006 written statement, the Veteran claimed that he wore a wrist brace about 60 percent of the day and that his barbering had severely suffered because he was not able to work as much as possible. In his VA Form 9, Substantive Appeal, the Veteran asserted that because of his service-connected disability and pain and pain medication, he had to start taking an additional day off from work. During his April 2009 Board hearing, the Veteran testified that he was really ambidextrous, that he had cut back on a previous schedule of barbering for 10 hours six days a week, and that he had cut way back on his barber business--that he had lost as much as $50,000 over the past three years. (See transcript at pp. 2-4, 6.) Initially, the Board notes that there is no evidence in the claims file of frequent periods of hospitalization due to the Veteran's right wrist disability. Further, it does not appear that the Veteran is claiming such. Thus, the Board must primarily determine whether the Veteran's service-connected right wrist disability results in a marked interference with employment. A March 2006 VA medical record noted that the Veteran was a barber, that he had his own shop, and that he worked six days a week for as much as 12 hours a day. An April 2006 VA medical record noted that the Veteran received a steroid injection in the right wrist after a VA physician found that a wrist preserving operation or a motion preserving operation would not benefit the Veteran and he was not interested in total wrist fusion surgery. The VA clinical record noted that the Veteran began experiencing significant pain about the right wrist during the past year and that it had begun to impair his ability to function as a hair dresser. Later, in an October 2006 VA medical record, the Veteran was quoted as saying that a wrist fusion surgery would end his career and that he had elected to "grin and bear it." The April 2006 VA examiner noted that the advanced osteoarthritis in the Veteran's right wrist significantly affected his employment because of decreased mobility, decreased manual dexterity, and pain. Symptoms related to the joint included instability, pain, stiffness, and weakness with crepitus and painful movement were also noted. The April 2006 VA examiner noted that the Veteran cut hair for a living and that his right wrist disability was causing significant difficulty with work. She noted that the Veteran was much less productive as his wrist arthritis progressed. A March 2008 VA medical record noted that the Veteran disliked visiting doctors. He had bone on bone degenerative changes in his wrist and was told the only intervention that would be successful was wrist fusion surgery, but that the Veteran was not willing to consider this. He was not taking nonsteroidal anti-inflammatory drugs, apparently because of concern for his kidney function. The June 2008 VA examiner noted that the Veteran's barbering involved his non-dominant right hand and required the use of both hands simultaneously. She also noted daily severe flare-ups of the arthritis in the joint and that he had increased pain and further limitation of motion at the end of a work day. The examination report noted instability, some giving way, pain, stiffness, and weakness in the right wrist joint. X-ray studies of the right wrist showed marked arthritic changes. The June 2008 VA examiner noted the Veteran's employment was a unique situation that warranted consideration. She also noted the involved joint had deteriorated since the previous examination and was essentially destroyed. She also noted significant effects on the Veteran's employment including: decreased mobility, problems with lifting and carrying, lack of stamina or fatigue, and pain. The examination report noted that the Veteran's income had decreased by $25,000 annually as he was self-employed as a barber. The right wrist was described as barely mobile and interfered with the quality and speed of his work and, as a result, he lost customers. In its May 2009 decision and remand, the Board increased the schedular disability rating from 20 percent to 30 percent and found that the regular schedular standards may not have adequately described and provided for the Veteran's symptoms and his disability level. The record reflected a disability picture that might be as exceptional or unusual as to render impractical the application of the regular schedular standards. Specifically, the Board noted that the Veteran had testified to significant reduction of earning potential in his vocation as a barber, and the medical evidence supported the Veteran's testimony as indicated by the statements made by the June 2008 examiner in her report. In view of such evidence, the Board found that the criteria for referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) were met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In the May 2009 remand, the Board directed the RO/AMC to consider whether this matter should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) and suggested that the RO/AMC, prior to that determination, should undertake additional development of the claim. The RO/AMC referred this matter to the Director of the Compensation and Pension Service, but elected no further development of the issue. The September 2009 report of the Director of VA's Compensation and Pension Service concluded that a review of the evidence did not warrant an extraschedular rating in excess of 20 percent. However, the Veteran's disability rating had been increased to 30 percent two months before that report was drafted. The September 2009 report also failed to include any discussion or analysis of any evidence suggesting marked interference with employment or frequent periods of hospitalization. As a result of the Board's December 2009 remand, a second C&P director's opinion was prepared dated in April 2011. While this opinion largely focused on the Veteran's past medical history and his medications, the director concluded again that he did not find the evidence supported the Veteran's entitlement to an extraschedular rating in excess of 30 percent. Although the Board may not assign an extraschedular rating in the first instance, the Board is not restricted from reviewing the denial of an extraschedular rating on appeal. See Floyd v. Brown, 9 Vet. App. 88, 96-7 (1996) (stating that once the Board properly refers an extraschedular rating issue to the Director of C&P for review, the appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. § 7104(a) ("All questions in a matter . . . under section 511(a) . . . subject to decision by the Secretary shall be subject to one review on appeal to the . . . Board."). Hence, the Board has jurisdiction to review whether the C&P Director's decision not to award an extraschedular rating was appropriate under 38 C.F.R. § 3.321(b). Upon review of the pertinent evidence of record, the Board finds that an extraschedular rating in excess of 30 percent for right forearm injury, status post surgical repair, is not warranted in this case. The Veteran has consistently reported his occupation as a barber and asserted that his service-connected right wrist disability, which affects his right hand, significantly interferes with his ability to do his job. Thus, in the December 2009 decision, the Board remanded the issue of an extraschedular consideration under 38 C.F.R. § 3.321(b)(1) to the RO for further development. In January 2010, the RO sent a letter to the Veteran requesting financial, tax, employment, medical or other relevant information necessary to satisfy a showing of marked interference with self-employment. However, the Veteran has never responded. Absent further participation by the Veteran in development of his own claim, the Board cannot take any further measures to assist him in this regard. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, the Board must base it decision on the evidence of record. The currently assigned 30 percent rating, which was awarded for nonunion in the lower half of the radius with loss of bone substance and marked deformity for the minor wrist, is near the maximum schedular rating for a wrist disability and appears to adequately account for all of the Veteran's symptomatology, such as arthritis, instability, pain, stiffness, weakness, decreased mobility and decreased manual dexterity. See 38 C.F.R. § 4.71a, Diagnostic Code 5212. Diagnostic Code 5210 provides a 40 percent rating for the minor wrist when there is nonunion of the radius and ulna, with a flail false joint, but there is no evidence in the record that the Veteran has a flail false joint. Diagnostic Code 5214 addresses ankylosis of the wrist, and provides for a rating higher than 30 percent, but there is no evidence in the record that the Veteran has ankylosis of the right wrist. The other diagnostic codes for rating wrist disorders (5211, 5213, 5215) do not provide for a rating in excess of 30 percent for the minor wrist. Even if not all of the Veteran's symptomatology is accounted for by his current rating, while the Veteran has apparently missed a significant amount of work time due to symptoms of his right wrist disability and has had to use a wrist brace to be able to continue in his current position, the only evidence of marked interference with employment is his Board testimony and the comments of the two VA examiners who had interviewed him. The Veteran had testified that he had shortened his working hours and lost an estimated $50,000 over the previous three years. The April 2006 VA examiner reported that the Veteran was much less productive at work as his wrist arthritis progressed. The June 2008 VA examiner noted that the Veteran had to use both hands while cutting hair and that the Veteran's employment was a unique situation that warranted consideration. However, as noted above, the Veteran has not responded to requests for financial, tax, and employment information to assist VA in making a determination. While the Board finds that the Veteran is competent to testify about the effects of his disability on his work, it has no way of determining the credibility of his estimates of lost working hours and wages because he has declined to provide VA with the necessary financial information. Therefore, the Board must conclude that the totality of the evidence, including the denial of an extraschedular rating by the Director of the C&P Service in both September 2009 and April 2010, does not show that the Veteran's service-connected right forearm injury, status post surgical repair, demonstrates such an exceptional or unusual disability picture with marked interference with employment. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, entitlement to an extraschedular rating in excess of 30 percent for right forearm injury, status post surgical repair, is not warranted. ORDER An extraschedular rating in excess of 30 percent for a right forearm injury, status post surgical repair, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs