Citation Nr: 1303871 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 07-14 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for residuals of a right scaphoid fracture. 2. Entitlement to a rating higher than 10 percent for residuals of a right radial head fracture arthrotomy, synovectomy, and exostectomy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from October 1994 to July 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2010 and in November 2011, the Board remanded the claims. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2012 and in October 2012, VA records were added to the Veteran's file. In December 2012, the Board asked the Veteran whether he wanted to waive the right to have the RO initially consider the additional evidence. Subsequently, the Veteran waived the right. FINDINGS OF FACT 1. The residuals of a right scaphoid fracture are manifested by dorsiflexion to less than 60 degrees and palmar flexion to no less than 70 degrees. 2. The residuals of a right radial head fracture are manifested by X-ray evidence of degenerative joint disease of the right elbow and a mildly depressed fracture of the adjacent capitulum, but not by nonunion of the radius. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a right scaphoid fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2012). 2. The criteria for a rating higher than 10 percent for residuals of a right radial head fracture have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5212 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2006. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist VA has made reasonable efforts to identify and obtain relevant records in support of the claims. 38 U.S.C.A. § 5103A (a), (b) and (c). The RO has obtained VA records and private medical records. The Veteran was afforded VA examinations. As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Principles and Schedular Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disabilities of the Musculoskeletal System Rating factors for a disability of the musculoskeletal system included functional loss. A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As regards the joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Right Scaphoid (Wrist) Fracture The residuals of a right scaphoid fracture are rated as noncompensably disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5215. Under Diagnostic Code 5215, the maximum rating is 10 percent rating for limitation of the wrist, either on the basis dorsiflexion, limited to less than 15 degrees, or palmar flexion in line with the forearm. In August 2006 on VA examination, dorsiflexion was to 70 degrees and palmar flexion to 70 degrees. In February 2012 on VA examination dorsiflexion was to 70 degrees or more and palmar flexion was to 80 degrees or more. VA records in October 2009 and in November 2010 and on VA examination in February 2012, there was normal range of motion of the right wrist. Because the Veteran's right wrist dorsiflexion is not limited to less than 15 degrees or plantar flexion limited to in line with the forearm, a compensable rating under Diagnostic Code 5215 is not warranted. Consideration has been given to whether functional loss exists with respect to the Veteran's right wrist. No pain on motion was noted on VA testing in November 2010 or on VA examination in February 2012. Accordingly, a compensable rating on the basis of functional loss is not warranted. Consideration has also been given to alternate diagnostic codes pertaining to injuries of the wrist. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The February 2012 VA examiner, however, indicated that no anklyosis was present in the wrist, and the Veteran has not alleged that flare-ups result in his wrist becoming "frozen" such that he has no range of motion. Accordingly, a compensable rating is not warranted for the Veteran's right wrist disability under alternate Diagnostic Codes. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a compensable rating is not warranted. 38 U.S.C.A. § 5107(b). Right Radial Head (Elbow) Fracture The residuals of a right radial head fracture are rated under Diagnostic Code 5212, which contemplates impairment of the radius. The right upper extremity is the major extremity. For the major upper extremity, Diagnostic Code 5212 provides a 10 percent rating for malunion of the radius with bad alignment, a 20 percent rating for nonunion of the radius in the upper half, a 30 percent rating for nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity, and a 40 percent rating for nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch or more) and marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5212. X-rays in August 2006, in July 2001, and in February 2012 did not show nonunion of the radius. In the absence of evidence of nonunion, the criteria for rating higher than 10 percent rating under Diagnostic Code 5212 have not been met. The 10 percent rating is the minimum compensable rating for the disability. 38 C.F.R. § 4.59. Alternative diagnostic codes have been considered. Schafrath, 1 Vet. App. at 595. However, the evidence does not establish that the Veteran's elbow has been ankylosed. The February 2012 VA examiner, however, indicated that no ankylosis was present in the right elbow. To the extent that the Veteran asserted at a June 2010 VA outpatient visit that his elbow locked in flexion on the phone at times, this was not reproduced on objective testing, and the Veteran has also stated that it only occurred after overuse, and was otherwise prevented by his prescribed right arm brace. Accordingly, Diagnostic Codes 5205 is not for application. Also during the appeal period, consideration was given to whether the Veteran's right elbow disability also resulted in neurologic impairment, based on his allegations of numbness and tingling in the fingers of the right hand. In July 2010 on VA examination, there were normal clinical findings, including motor and sensory functions. Electromyelogram and nerve conduction studies were normal. The VA examiner concluded that the subjective complaints of intermittent ulnar neuritis-like symptoms were not near the surgical site and less likely than not caused by or related to the in-service injury, especially in light of the negative nerve conduction study which ruled out any clinically significant neuropathic condition. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and a rating higher than 10 percent is not warranted. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of a service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the disability levels and the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular ratings are adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability In a rating decision in October 2012, the RO denied the claim for a total disability rating. The Veteran has the remainder of the one-year period from the date of notice of adverse rating decision to initiate an appeal. ORDER A compensable rating for residuals of a right scaphoid fracture is denied. A rating higher than 10 percent for residuals of a right radial head fracture is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs