Citation Nr: 1306232	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  07-26 364	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for status post-left wrist sprain.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel

INTRODUCTION

The Veteran had active service from September 1997 to September 2001 and from July 2002 to September 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee, granting service connection for the residuals of a left wrist sprain and assigning a 10 percent disability evaluation, effective as of September 17, 2005.  

In March 2009, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge at the RO in Nashville, Tennessee.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.  

During the pendency of this appeal, service connection for radiculopathy of the right lower extremity was reestablished.  Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).


FINDING OF FACT

The Veteran's left wrist disability is manifested by pain and some limitation of motion; it is not manifested by ankylosis.  


CONCLUSION OF LAW

The criteria for establishing entitlement to an initial disability evaluation in excess of 10 percent for the residuals of a left wrist sprain have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5214, 5215 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and assist veterans 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).  
	
Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This 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).  

The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection.  Courts have held that 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for this claim.  

As to VA's duty to assist, VA has associated with the claims folder the Veteran's service treatment records and VA treatment records.  Also, in May 2012, he was afforded a formal VA examination.  The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). 

Relevant Laws and Regulations

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2011).  

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).  See also 38 C.F.R. §§ 4.1, 4.2 (2011).  As such, the Board has considered all of the evidence of record.  However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal.  

As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  12 Vet. App. 119, 126 (1999).  

Facts and Analysis

The Veteran was originally granted service connection for the residuals of a left wrist sprain in a November 2005 rating decision.  A 10 percent disability evaluation was assigned under Diagnostic Code 5299-5215, effective as of September 17, 2005.  In August 2006, VA received a timely notice of disagreement from the Veteran regarding the assigned disability evaluation.  The 10 percent disability evaluation was continued in a June 2007 statement of the case.  The Veteran appealed the assigned rating to the Board in August 2007.  

The Veteran's service treatment records reflect that he was capable of flexion of the left wrist to 30 degrees (further limited by 10 degrees) and extension to 55 degrees (further limited by 5 degrees) in July 2005.  Pain was elicited upon motion, however.  

Post-service treatment records reflect continued complaints regarding the left wrist.  According to a May 2006 VA outpatient treatment note, the Veteran had good range of motion in the left wrist with no tenderness or swelling.  Subsequent records continue to note complaints of left wrist pain.  However, in August 2006, the Veteran reported that he was "doing ok" at the present.  He did endorse problems at times with typing.  

The Veteran was afforded a VA examination of the left wrist in April 2012.  It was noted that the Veteran was suffering from carpal tunnel syndrome.  The Veteran reported bilateral wrist pain since injuring his wrist while in the military.  He also endorsed falling on his wrist while doing push-ups.  Range of motion testing revealed palmar flexion to 60 degrees and dorsiflexion to 60 degrees.  There was objective evidence of pain at the extremes of motion.  Repetitive motion was performed and resulted in no additional limitation of motion.  There was also functional loss due to less movement than normal and pain on movement.  There was no ankylosis, scarring or any other pertinent findings related to the left wrist.  The examiner concluded that the Veteran's left wrist condition did not impact his ability to work.  

An addendum to the above examination was prepared in May 2012.  The examiner clarified that the Veteran's current left wrist pain was likely due to his in-service injury.  However, no records of carpal tunnel syndrome or overuse of the wrist were found upon review of the claims file.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his left wrist disability at any time during the pendency of his claim.  The Veteran's wrist is currently rated under Diagnostic Code 5215.  Diagnostic Code 5215 provides ratings based on limitation of motion of the wrist.  Limitation of palmar flexion in line with the forearm is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist; limitation of dorsiflexion to less than 15 degrees is rated 10 percent disabling for the major wrist and 10 percent for the minor wrist.  38 C.F.R. § 4.71a.

In the present case, the Veteran is in receipt of the maximum disability evaluation available under Diagnostic Code 5215.  While the Veteran has exhibited left wrist motion in excess of that required for a 10 percent disability evaluation under Diagnostic Code 5215, the RO assigned a 10 percent disability evaluation due to functional loss from pain.  In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion.  38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion.  38 C.F.R. § 4.40 (2012).  As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations.  38 C.F.R. § 4.45 (2012).  

A higher disability evaluation is not warranted unless there is evidence of ankylosis of the wrist.  Diagnostic Code 5214 provides ratings for ankylosis of the wrist.  Favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion is rated 30 percent disabling for the major wrist and 20 percent for the minor wrist; ankylosis of the wrist in any other position except favorable is rated 40 percent disabling for the major wrist and 30 percent for the minor wrist; and unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation, is rated 50 percent disabling for the major wrist and 40 percent for the minor wrist.  38 C.F.R. § 4.71a.  A Note provides that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125.  38 C.F.R. § 4.71a.  As noted by the April 2012 VA examiner, the Veteran does not suffer from ankylosis of the left wrist.  As such, Diagnostic Code 5214 is not applicable.  

In a November 2006 statement, the Veteran alleged a higher disability evaluation was warranted because his wrist was "favorable in 20 degrees to 30 degrees dorsiflexion."  This language is from Diagnostic Code 5214, and as such, it appears that the Veteran is asserting that he does in fact suffer from ankylosis.  However, ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).  The record reflects that the Veteran's left wrist has been mobile to at least some degree throughout the pendency of this claim, establishing that he does not suffer from ankylosis.  The Veteran has not provided VA with any additional evidence or statement demonstrating how he meets the schedular criteria for a higher disability evaluation.  

The Board notes that the Veteran was diagnosed with carpal tunnel syndrome during the April 2012 VA examination.  However, in the May 2012 addendum opinion, it was noted that a review of the claims file in fact revealed no evidence of carpal tunnel syndrome.  As such, it would appear that Diagnostic Code 8515 is not applicable in this case.  Nonetheless, as it is not entirely clear from the VA examination reports whether carpal tunnel syndrome now exists, the Board has considered whether 38 C.F.R. § 4.124a, Diagnostic Code 8515 would permit a higher or separate disability evaluation.  Under this code, a 10 percent rating is warranted for mild paralysis of the median nerve in the minor upper extremity; a 20 percent rating is warranted for moderate paralysis of the median nerve in the minor upper extremity; and a 40 percent rating is warranted for severe paralysis of the median nerve in the minor upper extremity.  Id.  According to the April 2012 VA examination report, muscle strength of the left wrist was normal.  There is no evidence of record of neurological impairment and the Veteran has not reported symptomatology such as burning or numbness.  As such, a separate compensable disability evaluation would not be warranted under Diagnostic Code 8515.  While the Veteran has endorsed pain in the left wrist, a separate disability evaluation based on pain would not be warranted since pain is the basis for the Veteran's 10 percent disability evaluation under Diagnostic Code 5215.  Pyramiding, the evaluation of the same disability or the same manifestations of a disability, under different diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  

The rating schedule represents as far as practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b) (2012).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).  The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Veteran's symptoms associated with his service-connected left wrist disability include pain and limited motion.  However, such impairment is contemplated by the rating criteria.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215.  Diagnostic Code 5214 allows for a higher disability evaluation upon a showing of worsening symptomatology.  Therefore, the rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent must be denied.
ORDER

The claim of entitlement to a disability evaluation in excess of 10 percent for the residuals of a left wrist sprain is denied.  



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs