Citation Nr: 1300247 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-29 690 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative joint disease of the right wrist. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the RO. When this case was most recently before the Board in May 2012, it was remanded for additional development. The case has since been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein. In the Veteran's July 2006 claim, he raised the issue of service connection for the residual scar from his right wrist surgery. It appears that no action has been taken to date. It is accordingly referred back to the RO for appropriate action. FINDING OF FACT The service-connected right wrist disability is shown to be manifested by degenerative joint disease with objective observation of limitation in range of motion to no worse than dorsiflexion to 50 degrees and full palmar flexion; neither ankylosis, nor neurological impairment sufficient to warrant a separate compensable disability rating is demonstrated. CONCLUSION OF LAW The criteria for the assignment of an initial disability rating in excess of 10 percent for the service-connected degenerative joint disease of the right wrist have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71, 4.71a including Diagnostic Codes 5003, 5010 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). 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). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of VCAA apply to all elements of a service-connection claim. This 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 476 (2006). The Veteran's claim on appeal has arisen from an appeal of the initial evaluation following the grant of service connection. 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 the VCAA. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. Following unsuccessful attempts by the RO, the Appeals Management Center (AMC) undertook efforts to obtain the Veteran's STRs in 2010, including requests to the Records Management Center in St. Louis and the RO; the AMC received negative responses from both locations. In a November 2010 letter, the AMC informed the Veteran that it was unable to obtain these records and requested that the Veteran send any records in his possession. In December 2010, the Veteran submitted a photocopied set of his STRs. The Board finds that the AMC fulfilled the duty to assist the Veteran in this regard, as further attempts to obtain these records would be futile. 38 C.F.R. § 3.159. Moreover, a review of the available STRs submitted by the Veteran, when viewed in relation to the entire record, indicates that these records provide sufficient evidence on which to decide the claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran was also afforded appropriate orthopedic and neurological VA examinations in connection with his claim. The Board finds that the examinations were adequate, in that the exams were conducted by a medical professional who indicated review of the claims file in most instances, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that VA has complied with its duty to assist the Veteran. The Board notes that this matter was remanded on several occasions for further development, to include additional VA medical examinations. The Board has reviewed the examination reports and finds them to substantially comply with the requirements articulated in the remand requests. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Initial Rating The Veteran contends that he is entitled to a higher disability evaluation for his service-connected right wrist disability. Legal Criteria Disability evaluations are determined by applying the criteria in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Separate evaluations may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (2001). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The service-connected right wrist disability is currently assigned a 10 percent disability evaluation effective on May 2, 2006 under the Rating Schedule at 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5010, traumatic arthritis, substantiated by X-ray findings is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis) established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), 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. For rating purposes, the wrist is considered a major joint. 38 C.F.R. § 4.45(f). In addition, as demonstrated by the evidence of record, the Veteran is right-handed. As such, major wrist disability ratings are applicable. 38 C.F.R. § 4.69. Under Diagnostic Code 5215, a 10 percent evaluation is assigned for limitation of motion of the wrist (major hand), manifested by either dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. Otherwise, as outlined above, a 10 percent rating is for application for arthritis with noncompensable limitation of motion under Diagnostic Code 5003. For purposes of VA compensation, the regulations define normal range of motion for the wrist as dorsiflexion (extension) to 70 degrees and palmar flexion to 80 degrees, with ulnar deviation to 45 degrees and radial deviation to 20 degrees. See 38 C.F.R. § 4.71, Plate I. In addition to the relevant rating criteria, when evaluating musculoskeletal disabilities, consideration is given to any functional loss experienced due to pain, weakness, excessive fatigability, or incoordination, to include that which results from repetitive use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Analysis By way of background, the STRs and treatment records from the Midwest Regional Medical Center reveal that the Veteran injured his right wrist playing basketball in March 2005. Later that month, he underwent open reduction internal fixation (ORIF) surgery on the wrist with placement of a volar plate; the postoperative diagnosis was that of right distal radius fracture. The Veteran was afforded a VA examination in July 2006, during which he complained of stiffness in cold weather, easy fatigue of the wrist, and a constant pain, aching in nature of 5/10. The examiner noted that the Veteran was able to perform activities of daily living. On examination, the Veteran's right wrist showed signs of tenderness; the right hand was noted to be dominant. Range of motion testing revealed dorsiflexion to 50 degrees with pain at 50 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. Repetitive motion did not increase the loss of range of motion. Following repetitive use, the Veteran was additionally limited by pain, but not other functional loss. An X-ray report showed mild degenerative arthritic changes in the radiocarpal joint with evidence of a prior, well-healed radial fracture. Gross examination of the joints and muscles were within normal limits; motor and sensory examination was within normal limits. The diagnosis was that of degenerative joint disease of the right wrist joints; status post right wrist ORIF with scar. The examiner noted that the effect of the disorder on the Veteran's daily life was mild, with no resulting functional impairment. In a May 2007 written statement, the Veteran reported continuing pain in the wrist. In the Veteran's September 2007 Substantive Appeal (VA Form 9), he noted his ongoing pain and limitation on physical activity, such as playing football due to his right wrist disability. He indicated that, while he was not currently undergoing treatment for his right wrist, he continued to have pain and had to rest his wrist during the weekends to prepare for the upcoming work week, as his job involved significant computer use. The Veteran underwent VA examination in June 2009, during which he reported having constant right wrist pain of 5/10 that traveled into the hand, as well as weakness, stiffness, swelling, giving way, lack of endurance, and fatigability; he denied heat, redness, locking, and dislocation. On examination, the right hand was noted to be dominant; there was edema of the right wrist but no signs of sublaxation, effusion, weakness, tenderness, redness, heat, or guarding of movement. Range of motion testing revealed normal results with dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. Repetitive motion did not result in loss of range of motion. Following repetitive use, the Veteran was additionally limited by pain, but not other functional loss. The diagnosis was that of status post fracture of the right ulna and radius, with open reduction and internal fixation with hardware placement and removal, with residual scar and degenerative arthritic changes of the right wrist. The examiner noted the effect of the disorder on the Veteran's daily activity and occupation was limited ability to use the dominant hand secondary to pain. A January 2010 MRI report revealed no evidence of joint effusion, with an intact triangular fibrocartilage, and normal flexor, abductor, and extensor tendons. The impression was that of an unremarkable MRI examination of the right wrist. The Veteran underwent VA examination in January 2010, during which he reported sharp pain that sometimes caused him difficulty in using the hand and radiated to the right palm. He denied giving way, instability, stiffness, weakness, incoordination, sublaxation, or flare-ups. On examination, the right hand was noted to be dominant; there was no joint ankylosis. Range of motion testing revealed normal results. Repetitive motion did not result in loss of range of motion. Following repetitive use, the Veteran was additionally limited by pain, but not other functional loss. The examiner reviewed the January 2010 MRI report and noted the results in the examination report. The diagnosis was that of status post right wrist fracture with open reduction and pinning; right wrist pain with radiation to the palm was noted as a problem associated with the diagnosis, but a separate neurological diagnosis was not provided. The examiner noted that there was no significant effect on the Veteran's occupation and no effect on activities of daily living. An August 2011 VA treatment record shows that the Veteran underwent a nerve conduction study, at which time he reported no left-side symptoms, loss of control of bowel or bladder, or pain in the fingers, but he did note having constant pain in the wrist. The examiner noted that the Veteran also reported a fear of needles, and as such, did not want a "needle exam." On examination, there was full strength and sensation and no atrophy; Phalen's, Allen's, and Tinel's testing yielded negative results. Following nerve conduction velocity testing, the impression was a normal study. The Veteran underwent VA examination in July 2012 with the same examiner that performed the August 2011 nerve conduction study. The Veteran reported a constant pain in his wrist of 5/10 and a shooting pain from his wrist to the ulnar and medial side of his elbow when trying to grip objects in a fist motion; he denied elbow, shoulder, or neck pain and atrophy. On examination, Phalen's, Allen's, Tinel's, and Adson's testing was negative, and there was no atrophy. The examiner reviewed the claims file, to include the previous X-ray, MRI, and nerve conduction study findings and noted the results in the examination report. The assessment was that there was no objective evidence of neurological impairment following examination upon which to base such a diagnosis. Based on a review of the record, the Board finds that an evaluation in excess of 10 percent for the Veteran's right wrist disability is not warranted. The rating assigned is consistent with the medical evidence, based on objective findings of limitation of motion, along with consideration of the Veteran's reports of pain on motion. In this regard, the limitation of motion of the right wrist is noncompensable under Diagnostic Code 5215; dorsiflexion has not been shown to be less than 15 degrees (50 degrees at worst) and palmar flexion is not limited. In any event, the necessary limitation of motion of the major wrist under Diagnostic Code 5215 would also result in a 10 percent evaluation, the maximum and only schedular rating available under that diagnostic code. The Board also recognizes the competent and credible evidence submitted by the Veteran, including his complaints of pain, occasional reduced ability to participate in activities such as football, and need to rest his wrist after a full work week using the computer. Reviewing the record in sum, however, the Board finds that this symptomatology is contemplated by the current rating assigned, consistent with the necessary joint evaluation considerations under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and DeLuca. Further, the Veteran is assigned the maximum schedular rating of 10 percent, and a finding of pain on motion cannot result in a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board has also considered other possible diagnostic codes pertaining to the wrist. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, as the Veteran's service-connected right wrist disability has not resulted in ankylosis, this evaluation is not for application. 38 C.F.R. § 4.71a, Diagnostic Code 5214. In addition, the Board finds that a separate disability evaluation is not warranted for neurological manifestations of the Veteran's right wrist disability. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Although the Veteran reported periodic subjective complaints, such as pain radiating to the palm and elbow, the objective medical evidence of record does not show that he has a separate neurological impairment due to his service-connected right wrist disability. In this regard, the August 2011 nerve conduction study and subsequent July 2012 VA examination yielded normal neurological results with no evidence of neurological impairment or diagnosis. Therefore, the Board finds that a separate evaluation for a neurological impairment is not warranted. The Board recognizes that the Veteran has manifested considerable subjective complaints that may appear to have much greater effect on his level of function than recognized by the schedular ratings assigned herein. The Board, however, is restricted to an assessment of the objective manifestations of a disability that can be measured against the rating schedule. The Board concludes that the preponderance of the evidence is against a finding for a disability rating in excess of 10 percent for the Veteran's right wrist disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration Consideration has also been given regarding 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) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extraschedular 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. Thun, 22 Vet. App. 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. In this regard, the maximum schedular evaluation in this case is not inadequate. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's right wrist disability. Accordingly, this issue need not be referred for consideration of an extraschedular rating. ORDER An increased, initial disability rating in excess of 10 percent for the service-connected degenerative joint disease of the right wrist is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs