Citation Nr: 1306785 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-14 663 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to a rating in excess of 10 percent prior to June 4, 2012, for a right wrist disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from April 1951 to January 1953. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In August 2010, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claim folder. The Board remanded the claim in October 2010 in order for additional records to be obtained and for a VA examination to be provided. That development was completed. The Board then remanded the claim a second time in April 2012 after being informed that the Veteran had undergone wrist surgery. The Board remanded to obtain additional VA treatment records and a VA examination. The directed development has been accomplished, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2012, the Veteran's right wrist rating was increased to 30 percent, effective June 4, 2012. The Veteran has indicated that he is satisfied with the 30 percent rating; however, he is not satisfied with the effective date assigned for the 30 percent rating: he contends that the 30 percent rating is warranted prior to January 15, 2013. As such, the Board has recharacterized the issue as shown on the title page. In the October 2010 and April 2012 remands, the Board noted that the issue of entitlement to service connection for a stomach disorder as secondary to medications for the Veteran's service-connected right wrist disability had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). See November 2003 VA Examination Report and November 2000 VA Treatment Record. As such, the Board twice referred the issue for appropriate action. The case has been returned to the Board, but it remains unclear whether any action has been taken on this claim. As such, the issue is once again referred to the AOJ for appropriate action. 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. Prior to June 1, 2011, the evidence of record does not establish that the Veteran's right wrist was ankylosed or even that ankylosis was approximated by functional limitation such as pain. 2. The Veteran's right wrist has been fused in favorable ankylosis between 20 to 30 degrees of dorsiflexion since the June 2011 wrist surgery. 3. No compensable scar was shown as a result of the Veteran's right wrist surgeries. 4. Weakness of the hand, and right arm atrophy are symptoms of the right wrist ankylosis and are not separately compensable disabilities. CONCLUSION OF LAW Criteria for a rating of 30 percent for a right wrist disability were met August 1, 2011, but the criteria for a rating in excess of 10 percent earlier than May 31, 2011 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.118, Diagnostic Codes (DCs) 5214, 5215, 7801-7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 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. 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 to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In October 2009, the Veteran filed a claim seeking an increased rating for his service connected right wrist disability, which was rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5215. During the course of the appeal, the Veteran underwent surgery on his right wrist and was provided with a temporary total rating for June and July 2011, before having his rating returned to 10 percent as of August 1, 2011. The rating was increased to 30 percent, effective June 4, 2012, the date it was first shown by medical examination that the Veteran had ankylosis of the right wrist. Disabilities of the wrist are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5214 and 5215. Under Diagnostic Code 5214, a 30 percent rating is assigned when there is favorable ankylosis of the dominant wrist between 20 and 30 degrees of dorsiflexion. A 40 percent rating is assigned when there is ankylosis of the dominant wrist in any position other than favorable. A 50 percent rating is assigned when there is unfavorable ankylosis of the dominant wrist in any degree of palmar flexion, or with ulnar or radial deviation. Extremely unfavorable ankylosis is rated as loss of use of hands under Diagnostic Code 5125. Under Diagnostic Code 5215 for limitation of motion of the wrist, a 10 percent rating is assigned when there is either dorsiflexion to less than 15 degrees or palmar flexion that is limited to in line with the forearm. The claims file consists of hundreds of pages of VA treatment records, several examination reports, and statements and testimony from the Veteran and his representative (to include at a hearing before the Board). On June 1, 2011, the Veteran underwent surgery to fuse his right wrist. Following this surgery, he was given a total temporary rating for two months of convalescence. Having reviewed the evidence, the Board concludes that prior to his surgery in June 2011, the evidence simply does not establish the presence of ankylosis in the Veteran's right wrist. This is not to say that the Veteran's right wrist disability was not painful or limiting. However, range of motion testing showed considerable range of motion in the right wrist; even functional limitation did not so limit the right wrist that it approximated ankylosis. The state of the Veteran's right wrist changed markedly on the date of his fusion surgery as his right wrist was fused in a favorable position. The RO increased the Veteran's rating to 30 percent as of the date of the June 2012 VA examination which confirmed the presence of favorable ankylosis. However, it is clear that the ankylosis was present from the time of the surgery, and therefore the 30 percent rating should become effective the date the Veteran's temporary convalescent period concluded. That is August 1, 2011. Rating in excess of 10 percent prior to June 1, 2011 In November 2009, the Veteran underwent a VA examination. He estimated that pain in his right wrist was 8/10 daily and indicated that his wrist was bothered by cold weather. He treated his right wrist disability with Motrin. He was using a brace and was noted to be right side dominant. The Veteran stated that he had worked a desk job reading blueprints and supervising construction. He estimated that his right wrist flared-up three times per month which caused him to stop what he was doing and take Motrin. On examination the right wrist had a bony prominence. Range of motion testing showed that the Veteran had dorsiflexion 0-20 degrees, palmar flexion 0-20 degrees, radial deviation 0-15 degrees, and ulnar deviation 0-20 degrees. Repetitive motion testing with a five pound weight did increase the weakness in the Veteran's hand. There was no limitation of motion in the hand, thumb or fingers. The neurological examination showed that the Veteran was able to touch his palmar crease. Additionally, Phalen's and Tinel's tests were negative and pinprick was normal throughout the right hand and wrist. X-rays from September 2009 showed degenerative changes in the right wrist. The examiner noted that there was no change in the active or passive range of motion during repeat testing against resistance. However, the examiner estimated that 10 degrees of dorsiflexion and 10 degrees of palmar flexion were lost from as a result of impaired endurance. There was no painful motion, incoordination or instability noted. The examiner did not find that ankylosis was present and did not suggest that range of motion was so limited by factors such as pain as to approximate ankylosis. In December 2009, the Veteran demonstrated 30 degrees of extension in his right wrist with 10 degrees of flexion and full range of motion of his fingers. It was noted that the surgical option would be a total wrist fusion. The Veteran stated that his right wrist disability caused a significant functional loss both occupationally and in his activities of daily living. The Veteran's rating was continued at 10 percent by the December 2009 rating decision. He filed a notice of disagreement in February 2010 indicating that he had severe limitation of motion and extreme pain. In his March 2010 substantive appeal the Veteran reported that he wore a brace to support his right wrist and noted that there was limitation of motion and limitation of strength in the wrist. In August 2010, the Veteran testified at a hearing before the Board that his right wrist had worsened. He stated he had limited ability to lift anything with his right arm. He also alleged that he had been told by the VA hospital that his wrist should be rated at 40 percent. It is the responsibility of the medical staff to appropriately diagnose a condition and evaluate the limitations it causes, but it is ultimately the responsibility of the Board to evaluate whether the symptoms described by the evidence of record warrant a higher rating. Thus, regardless of what the Veteran was told, the fact remains that evidence of right wrist ankylosis is not shown in the medical records prior to the Veteran's right wrist surgery in June 2011. In December 2010, the Veteran underwent another VA examination. The examiner noted that the Veteran was retired, used a right wrist brace with all activities except bathing, remained independent with his activities of daily living, and continued to write with his right hand. The Veteran denied being able to lift, push, pull, or carry objects with his right hand secondary to wrist pain. The Veteran reported experiencing persistent pain, which had worsened over time. The Veteran rated the pain at 8-9/10, and indicated that his wrist swelled approximately once a month and constantly felt stiff. There was no locking or instability. The examiner stated that the right wrist disability had no impact on the Veteran's usual occupation during the previous year. There was no soft tissue swelling of the wrist. Alignment was noted to be abnormal in that the Veteran preferred to hold his right wrist in 10 degrees of ulnar deviation; however, the examiner explained that this was not actually indicative of ankylosis as the Veteran was able to correct the wrist to neutral. Neurologic findings were negative. The Veteran had diminished strength in his right wrist which was further limited by severe pain. There was no atrophy of the forearm, wrist, or hand. The Veteran had extension from 0-20 degrees, flexion from 0-10 degrees, radial deviation from 0-9 degrees, ulnar deviation from 0-15 degrees, supination from 0-30 degrees and pronation from 0-80 degrees. There was pain and stiffness at the end of each measurement. However, the examiner specifically found no ankylosis to be present, explaining that the Veteran had measurable active range of motion present with all motions. Moreover, the examiner added that there was no approximation toward ankylosis with repetitive testing. The examiner repeated testing three times against resistance, with no additional loss of motion, no ankylosis, and no further approximation toward ankylosis. X-rays were taken, and the Veteran was diagnosed with severe right wrist degenerative joint disease. There was no ankylosis and no associated sensory or motor neurologic deficits. As described, the evidence of record from prior to June 1, 2011 does not show the presence of ankylosis. Multiple VA examinations were provided, but the examination reports do not suggest that ankylosis was present. At the December 2010 VA examination, the examiner explained that the Veteran had measurable active range of motion with all motions, meaning that ankylosis was not present. Moreover, the examiner determined that range of motion would persist even during a flare-up, which indicates that the examiner did not believe the wrist ever approximated ankylosis. VA treatment records were reviewed, but they too failed to show ankylosis of the right wrist prior to June 1, 2011. The Board does not wish to downplay the impairment caused by the Veteran's right wrist disability, as it is clear that the wrist has been quite painful for a number of years. However, the fact remains that for a schedular rating in excess of 10 percent for a wrist disability, ankylosis must be present. Because ankylosis was not shown, a rating in excess of 10 percent prior to June 1, 2011 is denied. Rating in excess of 30 percent earlier than June 4, 2012 On June 1, 2011, the Veteran underwent right wrist fusion surgery. As noted, he was eventually assigned a 30 percent rating as of the date of the June 4, 2012, examination which found that the Veteran had right wrist ankylosis. However, having reviewed the record, the Board is satisfied that the surgery to fuse the right wrist caused the ankylosis. For example, in September 2011, it was noted that the Veteran had no motion in his right wrist. As such, the Veteran clearly had ankylosis as of the date of that surgery, and therefore, the 30 percent rating should have been assigned at the conclusion of the convalescent period, August 1, 2011. In sum, the Board finds a 30 percent rating is warranted effective August 1, 2011, but no earlier, for the right wrist disability. The Board has considered whether a separate rating is warranted. The Board notes that the June 2012 VA examiner determined that the Veteran had right forearm atrophy and hand weakness which was as likely as not due to the right wrist condition. The examiner reasoned that these symptoms were the result of decreased use of the wrist due to pain and fusion, because there was no clear neural etiology found on examination. VA regulations prohibit the evaluation of the same disability under various diagnoses, a concept known as pyramiding. 38 C.F.R. § 4.14. It is not contended that the right arm atrophy is a result of a separate neurologic disability, and the examiner fully explained that there was no clear neural etiology to explain either the atrophy or the hand weakness. As such, the Board considers the weakness and atrophy to be symptoms of the surgery and the resulting ankylosis, and not sufficiently disabling to warrant the assignment of a separate rating. Such a conclusion is consistent with VA practice. For example, weakness is a factor which is considered in determining the functional impairment caused by limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Such a conclusion is also supported by the fact that the Veteran's rating was increased when his wrist became ankylosed, compared with when the right wrist was only limited in its range of motion. That is, the rating schedule recognized that ankylosis could present additional problems. Thus, a separate rating is not warranted based on the atrophy and hand weakness A separate rating is also not warranted based on scarring. Scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, DCs 7801-7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). Under Diagnostic Code 7804, a 10 percent rating is assigned when there are one or two scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Additionally, Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. At the November 2009 VA examination, the examiner described a 3.5 cm by 0.2 cm scar that was vertical and slightly hypopigmented and with no deep tissue loss. The appearance was smooth. There was no ulceration and it was superficial. There was no pain on palpation, no adherence to the underlying tissue, and no signs of inflammation, edema, ulceration or keloids. The scar did not interfere with the range of motion of the wrist. At the December 2010 VA examination, the examiner stated that the Veteran had a well-healed, linear scar over the dorsal midline of the wrist. The scar measured 4 cm in length and 0.2 cm in width. The scar was deep, but without evidence of any underlying soft tissue loss, with deep tissue disruption considered equal in size to the overlying skin scar. There was no scar-induced limitation of joint motion. The scar was smooth without inflammation, ulceration or skin breakdown. It was faint in color and caused no gross asymmetry or distortion of features. On palpation the scar was level with the surrounding skin, flexible, non-indurated, non-edematous, non-adherent and nontender. In April 2012, the Veteran was noted to have a well-healed scar on his right wrist. At the June 2012 VA examination, the examiner described a scar that was one line in some places and two in others as a result of the Veteran's surgery in service and his surgery in 2011. The scarring measured 8.5 x 0.4 cm. It was adherent but nontender. All the scars were deep, stable, smooth, and without elevation or depression, skin breakdown, ulceration, underlying tissue loss, asymmetry, disfigurement or restriction of range of motion. Turning to the rating criteria, even after the most recent surgery in 2011, the scarring on the Veteran's right wrist measured 8.5 x 0.4 cm., meaning that it covered an insufficient surface area to warrant a rating under Diagnostic Codes 7801 or 7802. Additionally, the examiners noted no tenderness with the scarring and there has been no suggestion that the scarring is painful or unstable (or has been at any time during the course of the Veteran's appeal). In fact, on the most recent examination, it was noted that the scarring was non-ulcerated. As such, a compensable rating is not warranted under Diagnostic Code 7804. Finally, no effects have been reported as a result of the wrist scarring that have not been considered by the aforementioned Diagnostic Codes. As such, a compensable rating is not warranted under Diagnostic Code 7805. The Board has additionally considered whether referral for consideration of an extraschedular rating is warranted. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. The medical evidence fails to show anything unique or unusual about the Veteran's right wrist disability that would render the schedular criteria inadequate. The Veteran's main symptoms throughout his is appeal have been pain, weakness, and lack of endurance in the right wrist. Each of these factors was specifically considered in determining whether the limitation of motion approximated ankylosis. As such, the schedular rating criteria that have been applied in this case adequately describe the Veteran's disability picture and therefore referral for consideration of an extraschedular rating is not warranted. Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his service connected right wrist disability. At his most recent VA examination, it was noted that the Veteran had worked in commercial engineering until approximately seven years earlier when the economy slowed down, and the examiner added that the Veteran's right wrist would not interfere with his ability to do that job if he were still doing it. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected right wrist disability. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). Hundreds of pages of VA treatment records have been obtained, and the Veteran has not alleged receiving any private treatment for his right wrist disability. Additionally, the Veteran testified at a hearing before the Board. With respect to the aforementioned August 2010 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or AVLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the increased rating claim. The AVLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The AVLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2). The Veteran's claim was remanded in part to seek Social Security Administration (SSA) disability records. However, a response was received from SSA that no medical records were found for the Veteran. VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). Here, the Board concludes that such a search would be futile as a response has been received from SSA indicating that no records are available. Moreover, the Veteran was provided with a letter in October 2011 pursuant to 38 C.F.R. § 3.159(e) informing him that the records were not available. Therefore, a remand is not necessary to seek any treatment records. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds that the VA examinations were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A 30 percent rating is granted, effective August 1, 2011, subject to the laws and regulations governing the award of monetary benefits, but a rating in excess of 10 percent earlier than June 11, 2011 is denied. ______________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs