Citation Nr: 1127616 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 09-39 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from November 1950 to September 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The file was later transferred to the RO in Winston-Salem, North Carolina. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the rating period of appeal, the Veteran's residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia have not more nearly approximated favorable ankylosis of the wrist. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5214-5215 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act 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 and 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for increase, the VCAA requires only generic notice as to 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 general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in June 2008 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish an effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran is seeking an increased rating for his residuals of a chip fracture of the proximal end of the right fifth metacarpal. He filed his claim in May 2008. Throughout the rating period on appeal, the Veteran's residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia have been rated as 10 percent disabling under Diagnostic Code 5003-5215, 38 C.F.R. § 4.71a (2010). Thus, the disability has been evaluated on the basis of residual limitation of motion of the wrist. See 38 C.F.R. § 4.27 (2010). The Board observes that the Veteran is right-handed. Thus, his right wrist disability involves the dominant hand. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated based on of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating and x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. Under Diagnostic Code 5215, limitation of motion of the dominant wrist warrants a maximum 10 percent rating. Thus, the Board will consider other applicable rating criteria to determine whether an increased rating is warranted. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under Diagnostic Code 5214, a 30 percent rating is warranted for favorable ankylosis of the dominant wrist in 20 to 30 degrees of dorsiflexion; a 40 percent rating is warranted for ankylosis of the dominant wrist in any other position except favorable; and a 50 percent rating is warranted for unfavorable ankylosis of the dominant wrist, in any degree of palmar flexion, or with ulnar or radial deviation. Normal ranges of motion of the wrist are dorsiflexion from 0 degrees to 70 degrees, and palmar flexion from 0 degrees to 80 degrees. Plate I, 38 C.F.R. § 4.71 (2010). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). After a careful review of the record, the Board finds that an increased rating is not warranted for the Veteran's residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia. The reasons and bases for this conclusion will be now be discussed. Clinical records dated in 2007 reflect complaints of right hand pain. No range of motion findings are indicated in such records. A September 2008 VA examination report reflects a history of a chip fracture of the proximal end of the right fifth metacarpal and complaints of right wrist pain that radiates up to the shoulder. His pain, at its worst, was rated 10 out of 10 in intensity, and was exacerbated by physical activity. The Veteran reported difficulty performing many daily activities and tasks such as buttoning clothes, tying shoes, combing hair, bathing, and toileting. He took medication to control his pain symptoms. Objectively, range of motion of the right wrist was normal except for ulnar deviation, which was limited to 30 degrees. After repetitive use, the wrist was additionally limited by pain, fatigue, weakness, lack of endurance, and incoordination, but there was no additional limitation of motion in degrees. The Veteran had extreme difficulty tying shoelaces, fastening buttons, and picking up and tearing a piece of paper with the right hand. The tips of the fingers could all approximate the transverse crease of the palm and the thumb was able to oppose all of the fingers. His hand strength was moderately decreased. None of the finger joints were in any fixed position or ankylosed, and all of the fingers demonstrated normal ranges of motion without evidence of pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. X-rays were negative except for periarticular osteopenia. There were two scars on the lateral aspect of the right hand, one measuring 2 by 0.1cm and the other measuring 4 by 0.1cm. Both scars were hypopigmented but with no elevation or depression, tenderness, disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, or keloid. Following the examination, the diagnosis was postoperative fracture repair with residual scars and periarticular osteopenia. The examiner noted that the Veteran has extreme difficulty with gripping and performing tasks requiring manual dexterity such as buttoning clothes, shaving, and combing hair as a result of his disability. An April 2009 VA treatment note reflects complaints right wrist pain that occasionally radiates into the little fingers, with stiffness in the fingers mostly in the morning, for the past three weeks. Examination of the wrist revealed no effusion or increased local warmth. Although there was pain on motion, range of motion was reportedly good. The diagnosis was of chronic right wrist arthralgia. X-rays showed no acute fracture or dislocation but there was moderate hypertrophic spurring and a slight amount of irregularity at the radiocarpal (wrist) joint, with spurring at the joint between the distal end of the scaphoid bone and the trapezium and trapezoid. A July 2009 VA treatment note reflects complaints of right palm/hand pain with locking. Examination revealed normal range of motion. A treatment note dated later that day reflects complaints of right wrist and bilateral finger joints pain, and that he has to run hot water on his fingers when they stiffen up. Examination revealed no effusion or increased local warmth. Although there was pain with movement, mostly in the right thumb and fingers, range of motion was reportedly good. The diagnosis was of chronic right wrist arthralgia. An April 2010 VA treatment note reflects complaints of trouble with the right hand, such as when combing hair. The above evidence, then, reflects a disability picture involving pain of the right wrist that interferes with some of the Veteran's daily activities. While acknowledging this fact, the Board nonetheless finds no basis for assignment of a rating in excess of 10 percent. Again, range of motion was essentially normal throughout the rating period on appeal, despite the complaints of pain. Moreover, there is no clinical evidence of any ankylosis of the right wrist. The September 2008 VA examination revealed normal range of motion of the wrist except for ulnar deviation, and April and July 2009 VA treatment notes indicated that range of motion of the wrist and fingers was within normal limits. Thus, even considering DeLuca principles, the evidence does not show a disability picture most closely approximated by an ankylosis rating. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation here. However, after review, the Board finds that no other relevant diagnostic codes provide for a higher rating. Although the Veteran has two scars on the wrist, only one of which is associated with the in-service removal of the bone chip, based on the findings during the VA examination, a separate compensable rating is not warranted for either scar under Diagnostic Codes 7800 to 7804, 38 C.F.R. § 4.118 (requiring an area of at least 144 square inches, instability, or pain under the rating criteria in effect prior to October 23, 2008, the controlling criteria in this case). In sum, there is no support for a higher rating here. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. 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 or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, 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. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected right fifth metacarpal disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's wrist disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. ORDER A rating in excess of 10 percent for residuals of a chip fracture of the proximal end of the right fifth metacarpal with periarticular osteopenia is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs