Citation Nr: 1305482 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 08-07 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to separate compensable rating(s) for neurological manifestations of right wrist fracture residuals. 2. Entitlement to a separate compensable rating for bowel impairment associated with the service-connected degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1954 to November 1957. This matter came to the Board of Veterans' Appeals (Board) from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2010 and July 2011 for further development. The Veteran appeared at a December 2009 hearing before the Board at the RO. A transcript is of record. Although the appeal had also included the issues of entitlement to separate compensable rating(s) for radiculopathy associated with the service-connected DDD of the lumbar spine and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), these benefits were granted by rating decision in November 2012 and are therefore no longer in appellate status. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no neurological impairment associated with the right wrist fracture residuals. 2. There is no compensable bowel impairment associated with the degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate compensable rating for neurological manifestations of right wrist fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Codes 5215, 8515 (2012). 2. The criteria for entitlement to a separate compensable rating for bowel impairment associated with the Veteran's degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Codes 5215, 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in May 2008 and September 2010, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the May 2008 and September 2010 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in March 2011 and September 2012 supplemental statements of the case, following the provision of notice in September 2010. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA and private treatment records; reviewed the Veteran's Virtual VA file; assisted the Veteran in obtaining evidence; afforded the Veteran VA examinations in June 2006, October 2010, November 2010, August 2011 and September 2011; and afforded the Veteran the opportunity to give testimony at a hearing before the Board at the RO in December 2009. While the Veteran testified at the aforementioned hearing that he was in receipt of Social Security Administration (SSA) benefits, he stated that this was due to his age. Thus, additional development is not necessary. On forms received in October 2012 and November 2012, the Veteran indicated by marking the appropriate responses that he did not have any additional evidence to submit and to have his claim forwarded to the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. I. Neurological Impairment-Right Wrist One of the issues before the Board is entitlement to separate compensable rating(s) for neurological manifestations of right wrist fracture residuals. On a statement received in October 2012, the Veteran reported being able to barely use his hands and it appears to the Board that he had asserted that it was due to his service-connected right wrist fracture residuals. It was noted that his wife drafted the statement because of the Veteran's inability to use his hands much. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25. However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. A separate disability rating may be assigned for neurological manifestations of right wrist fracture residuals. It appears to the Board that applicable diagnostic criteria for a separate evaluation for neurological impairment is contained in 38 C.F.R. § 4.124a , Diagnostic Codes 8514 to 8516 (paralysis of the musculospiral nerve, median nerve and ulna nerve). The Veteran was seen on several occasions at the VA. In September 2000 the Veteran had right arm numbness after cervical laminectomy. An October 2005 VA treatment record shows diabetic peripheral neuropathy. The Veteran was afforded a VA examination in June 2006. It was noted that he had diabetes with peripheral neuropathy that affected his hands bilaterally, and that he also had bilateral carpel tunnel releases. On VA examination in October 2006 (specifically for the back disability claim) the Veteran stated that his cervical spine problems started in the 1990's and consisted mostly of numbness and tingling and radicular symptoms in both hands. A February 2007 private treatment record from Mayes Dubose, M.D. shows complaints of increasing symptoms of cervical radiculopathy with numbness in both arms and hands. A VA treatment record shows that in September 2008, there was diminished sensation to light touch; and deep tendon reflexes were normal. At a December 2009 hearing before the Board at the RO, he confirmed lacking strength and rip in his right hand, and that he had experienced numbness, tingling and pain. On VA examination in October 2010, the Veteran reported not being able to pick up objects whenever he had flare-ups in the wrist. A November 2010 VA examination report shows that motor strength in the upper and lower extremities was 4-/5. The VA examiner diagnosed severe diabetic neuropathy. When the Veteran was afforded a VA examination in August 2011, he reported problems using his right hand. However, the VA examiner observed that he was able to grasp, pull, twist and write his name adequately with the right hand. The VA examiner noted that examination of the right hand showed no motor or sensory deficit. After interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner found no neurological impairment associated with the service-connected residuals of the right wrist fractures. The Veteran was afforded another VA examination in September 2011. The VA examiner observed that sensory examination is consistent with profound diabetic polyneuropathy with sensory loss distally for primary modalities in both lower extremities. In upper extremities, all of the fingers 2, 3, 4 and 5 on the right hand are in semiflexion. There was no atrophy of the right thenar eminence. Compression of the right median nerve of the wrist elicited paresthesias in the right thumb. On sensory examination, there was decreased sensation in the right index finger compared to the left. Compression of the ulnar nerve of the elbow elicited paresthesias in the ulnar nerve distribution bilaterally. There was atrophy of the first interossei muscle in the left hand and more in the right. The VA examiner's impression was that the Veteran had profound diabetic polyneuropathy affecting the lower extremities, more than the upper extremities. He noted possible lateral carpel tunnel syndrome and cubital tunnel syndrome. The VA examiner did not find evidence of nerve damage from the in-service wrist injury. The Board acknowledges the Veteran's assertion that his neurological symptoms are due to right wrist fracture residuals. While he is competent to report symptoms he experiences, he is not competent to render a nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, competent medical evidence shows that his neurological symptoms are due to disabilities other than right wrist fracture residuals. Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to separate compensable rating(s) for neurological manifestations of right wrist fracture residuals. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). II. Bowel Impairment Under 38 C.F.R. § 4.71a, Note (a) to the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including but not limited to bowel impairment, are to be rated separately. The Veteran's representative advanced a contention that such a separate rating is warranted in this case. However, after reviewing the pertinent evidence, the Board also finds that the preponderance of the evidence is against entitlement to a separate compensable rating for bowel impairment associated with the service-connected lumbar spine disability. At the time of a VA examination for aid and attendance purposes in September 2008, the Veteran denied fecal incontinence. VA outpatient reports include notations of constipation. A June 2009 record notes that the Veteran reports constipation and that he uses Metamucil with good results. At the time of VA examination in November 2010, the Veteran reported bowel incontinence approximately 2-3 times a week. On examination in August 2011, the examiner noted the report of incontinence at the 2010 examination, but commented that at the time of the 2011 examination the Veteran stated that the problem is mostly constipation and that he did not have any bowel incontinence. The examiner offered an opinion that there was no bowel impairment associated with the low back disability. On examination in September 2011, a different VA examiner reported that the Veteran's constipation was due to the use of medications taken for the low back disability. The above evidence suggests that there is some associated bowel symptomatology associated with the service-connected low back disability. The question is whether the bowel symptoms warrant a separate compensable rating. It appears that the provisions of Diagnostic Code 7319 for irritable colon syndrome are appropriate to consider by analogy. Under this Code, a 0 percent rating is for application when the disorder is mild; disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted when the condition is moderate; frequent episodes of bowel disturbance with abdominal distress. The highest rating of 30 percent is for application when the disorder is severe; diarrhea, or alternating diarrhea and constipation , with more or less constant abdominal distress. The Board's interpretation of the evidence in this matter is that the bowel impairment associated with the low back disability is best described as mild rather than moderate. There is no persuasive suggestion that the bowel disturbances are frequent with abdominal distress. In fact, there is some evidence that the Veteran is able to handle episodes of constipation with Metamucil with good results. In sum, although there is some bowel impairment associated with the low back disability, the preponderance of the evidence is against a finding that the criteria for a compensable rating for such impairment have been met. As such, the appeal as to this issue must be denied. ORDER Entitlement to separate compensable rating for neurological manifestations of right wrist fracture residuals is not warranted. Entitlement to a separate compensable rating for bowel impairment associated with the service-connected degenerative disc disease of the lumbar spine is not warranted. The appeal is denied as to both issues. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs