Citation Nr: 1126691 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 09-03 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture with degenerative joint disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) by a March 2007 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for residuals of a left wrist fracture with degenerative joint disease (DJD). In March 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. From his hearing testimony, it is clear that the Veteran believes he has neurological symptoms as a result of his wrist disorder. Specifically, in December 2009, he underwent open cubital tunnel release of the left ulnar nerve. However, the RO has never considered a claim for secondary service connection for this condition. Such a claim is not intertwined with the claim for an increase currently on appeal because if the secondary claim were granted, it would result in a rating for neurological disability, while the current claim encompasses orthopedic disability. Therefore, the claim for secondary service connection for left ulnar nerve impairment is REFERRED to the RO for appropriate action. Notably, the Veteran submitted additional VA treatment records subsequent to the most recent May 2010 adjudication in this matter. The Board finds, however, that remand for readjudication is not required. In short the treatment records pertain to the ulnar nerve decompression procedure related to the Veteran's left elbow and not to the Veteran's service-connected left wrist disability. FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA medical examination which was scheduled to evaluate the current severity of his service-connected left wrist disability. 2. The 10 percent rating assigned for the Veteran's left wrist disability is the maximum rating provided for limitation of dorsiflexion or palmar flexion of the wrist; ankylosis of the wrist is not shown, or alleged; separately ratable neurological impairment related to the service-connected left wrist is not shown. CONCLUSION OF LAW A rating in excess of 10 percent for residuals of a left wrist injury with DJD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Codes (Code(s)) 5003, 5211, 5212, 5213, 5214, 5215 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484- 86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as generic notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication. A February 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also informed him generally of effective date criteria. A November 2009 and a May 2010 supplemental statement of the case (SSOC) readjudicated the matter. He has received the general-type notice described in Vazquez-Flores, and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records are associated with his claims file. The RO arranged for an examination of the Veteran in March 2007. The examination is adequate for rating purposes; as the examiner expressed familiarity with the pertinent medical history, and conducted a thorough examination, noting all findings necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO arranged for an examination in March 2010, however, the Veteran failed to report. In general, VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law further states that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). When a claimant fails to report, without good cause, for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565 (2008). See also 38 C.F.R. § 3.326(a). The Board is of course aware of due process concerns that may arise in connection with cases, such as this, in which a Veteran's claim is being denied based on his failure to adhere to VA regulations rather than the Board considering evidentiary merits of the issue on appeal. Cf. Swan v. Brown, 9 Vet. App. 450 (1996). In this case, it is unclear, whether or not the Veteran was advised of the examination, the importance of the examination, or possible consequences for his failure to report; as there is no notice letter regarding such matter associated with the claims file. To the extent that it is unclear whether or not the Veteran was aware of the consequences of his failure to report to the VA examination, the Board has nevertheless reviewed the evidence of record to determine if the service-connected left wrist disability is of such severity to warrant the award of a higher disability evaluation. However, due to his failure to report, the Board will not consider remanding this case to obtain more current information as to the severity of his disability. Rather, the appeal will proceed based on the 2007 examination. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. 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). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be direct to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Several of these 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. Normal wrist range of motion is 80 degrees of palmar flexion, 70 degrees of dorsiflexion, 20 degrees of radial deviation, and 45 degrees of ulnar deviation. Normal forearm pronation is 0 to 80 degrees and normal forearm supination is 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I. A July 2003 rating decision granted service connection for residuals of a left wrist fracture with DJD, rated 10 percent. The Veteran submitted his claim for increase in December 2006. VA treatment records from November 2006 through May 2010 show, among others, continued treatment for left wrist pain. On March 2007 VA examination, the Veteran reported that he had not been seen in a couple of years for his left wrist. He reported occupations of a cable person to carpet cleaner to most recently working at VA in Housekeeping. He reported that his job entailed lifting and carrying. He stated that he was right hand dominant. The Veteran's left wrist complaints included constant pain and limited range of motion. He reported that he was able to perform all of his activities of daily living, and that he usually avoided using his left hand. The Veteran did state that when he used his left hand, he experienced a popping and grinding sensation; increased swelling (which he indicated decreases to minor puffiness by the end of the day); and increased pain. He rated the daily pain at a 7 to 10 (out of 10). He reported that the left wrist has not caused him to miss anytime from work. Examination revealed scars on the dorsal and ventral surface with a larger left wrist; range of motion showed 30 degrees of extension, 40 degrees of flexion, 2 degrees of radial deviation, and 15 degrees of ulnar deviation (the examiner noted that all measurements were done actively and passively equally with repetitions of three and were unchanged); pain was noted with all movement; there was tenderness about the entire wrist with palpation; he was able to shake hands, but was unable to pronate and supinate without pain and grimacing; pronation was 75 degrees and supination was 75 degrees; sensation was intact and throughout the whole hand; pushing, pulling, and probing caused pain in the wrist; there was pain in all motion, but strength was 5/5. The examiner's assessment was as follows: "Left wrist fracture with degenerative changes, previously confirmed by X-ray with limited range of motion. It is within reason to believe that this [Veteran] has lost between 50 and 60 degrees of his range of motion, strength, coordination, and fatigability associated with repetitive movement flares. All repetitive movements cause flares for him. I would expect that he would tolerate his job because he is right hand dominant and he does not have to lift anything heavy and he can stabilize small amounts of probably five pounds or less. Anything more than this would be symptomatically painful for him. Because he is in the laundry in Housekeeping, he can find small amounts of loads and tolerate this. I expect no difference in his home life or work." Social Security Administration records, received by the RO in February 2009 show no specific treatment for left wrist ankylosis. At the March 2011 Travel Board hearing, the Veteran testified, in pertinent part, that he was not currently experiencing any problems with his service-connected left wrist disability (see page 9 of the hearing transcript); and that his issue was more or less the scarring from the most recent surgery (which, as noted, involved his left elbow, which is nonservice-connected). Additionally, the Veteran testified that he was not currently employed, as he was a student. The Veteran's left wrist disability is rated under Codes 5003 and 5215 (for limitation of motion with X-ray confirmed arthritis). The rating schedule provides a higher rating (in excess of 10 percent) for wrist disability only where there is ankylosis of the wrist. See 38 C.F.R. § 4.71a, Codes 5214, 5215. However, the record includes no evidence of ankylosis (even with factors such as limitation due to pain, flare-ups, or use considered) so as to warrant a rating under this code. [Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992.] Although the Veteran has limitation of left wrist motion, weakness, pain, and fatigue, ankylosis is neither shown, nor alleged. Consequently, the evidence does not provide a basis for an increase in the rating for the orthopedic manifestations of this disability. 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. 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. 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. Notably, on the March 2007 VA examination, there is no evidence that left arm motion was lost beyond the middle or last quarter of the arc. In fact, the Veteran, albeit with pain, was able to perform duties of employment as well as everyday living. Additionally, left arm pronation and supination was 75 degrees (well within the normal range). Consequently, this Code is not applicable. Ratings are also available for ulnar and radial bone impairment. Impairment of the ulna is rated under Code 5211. 38 C.F.R. § 4.71a. Impairment of the radius is rated under Code 5212. Id. In light of the Veteran's medical history, his disability does not involve an ulnar or radial bone injury. As a result, these Codes are not applicable. Based on the foregoing, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Codes 5211, 5212, and 5213. Additional factors that could provide a basis for an increase have also been considered; however, it is not shown that the Veteran has any functional loss beyond that being currently compensated. 38 C.F.R. §§ 4.10, 4.40, and 4.45; DeLuca, 8 Vet. App. at 205. Notably, there is no evidence of a separately ratable neurological disability as a residual of his service-connected left wrist disability. As the record contains no evidence showing that the Veteran is entitled to a higher rating for his service-connected left wrist fracture with DJD 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, Codes 5003, 5215. 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 in March 2007 that the Veteran was currently employed at VA in Housekeeping and that his employment was not hindered by his left wrist disability. The Veteran testified at the March 2011 hearing that he was not currently employed; however, the Veteran has never asserted that he is unable to work as a result of his left wrist disorder (and in fact stated that he was a student). While he complained that his wrist felt weak and sometimes numb, and affected his ability to type, or carry things, the contention that he had been rendered unemployable as a result of his left wrist disorder was never suggested. 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 Codes 5003 and 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 left wrist fracture with DJD to be adequate. Referral for extraschedular consideration is not warranted. Finally, as there is no evidence in the record that shows that the Veteran is unable to obtain any form of employment, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased evaluation for residuals of his left wrist fracture with DJD; accordingly, the benefit of the doubt doctrine does not apply. The claim must be denied. ORDER A rating in excess of 10 percent for residuals of a left wrist fracture with DJD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs