Citation Nr: 1310104 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-29 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 10 percent for post-operative residuals of a right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to November 1995. This appeal to the Board of Veterans' Appeals (Board) is from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. As support for his claim, the Veteran testified at a videoconference hearing in January 2013 before the undersigned Veterans Law Judge (VLJ). Following the hearing, the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims, which has been reviewed and considered. FINDINGS OF FACT 1. The Veteran is right-hand dominant; therefore, his right hand is his major extremity. 2. Although there is some limitation in the range of motion, his right wrist has motion in every direction (dorsiflexion, palmar flexion, radial and ulnar deviation) and, therefore, is not ankylosed. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for the service-connected post-operative residuals of a right wrist disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a; Diagnostic Code 5215 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, January and October 2008 letters were sent advising the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding relevant records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in December 2007, November 2008, and December 2011 in conjunction with the claim on appeal. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected right wrist disability as it includes an interview with the Veteran, a review of the record, and a full physical examination with diagnostic testing, addressing the relevant rating criteria. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs 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 VLJ noted that basis of the March 2008 rating decision and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim(s) based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); 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 appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Increased Rating Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Disabilities of the wrist are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5214 (ankylosis) or Diagnostic Code 5215 (limitation of motion). Here, the Veteran's right wrist disability is currently rated at 10 percent under Diagnostic Code 5215. Under Diagnostic Code 5215, a 10 percent rating is warranted for the major (dominant) or minor (non-dominant) wrist when there is dorsiflexion less than 15 degrees, or when palmar flexion is limited in line with the forearm. A 10 percent disability rating is the maximum schedular rating provided for limitation of motion of the wrist. The Board notes that the Veteran's disability is evaluated at 10 percent, and as such he is receiving the maximum scheduler rating possible under Diagnostic Code 5215. Therefore, the Board finds that a higher evaluation is not warranted under this Diagnostic Code. A higher disability evaluation is afforded for ankylosis of the wrist under Diagnostic Code 5214. This code distinguishes between major and minor extremity. To qualify for the minimum compensable evaluation of 30 percent disabling for the major wrist or 20 percent minor wrist, the service-connected disability must be manifested by favorable ankylosis in 20 to 30 degrees of dorsiflexion. The Veteran has been afforded three VA examinations, dated in December 2007, November 2008, and December 2011. During each of these examinations, the examiners concluded that the Veteran did not suffer from ankylosis in the right wrist. The December 2007 VA examiner noted dorsiflexion to 26 degrees and palmar flexion to 13 degrees. The November 2008 VA examiner noted dorsiflexion to 40 degrees and palmar flexion to 14 degrees. Finally, the December 2011 VA examiner noted dorsiflexion to 20 degrees and palmar flexion to 15 degrees. Importantly, however, while the Veteran did exhibit decreased range of motion in the right wrist, all three examiners determined he did not exhibit ankylosis. Therefore, the Veteran does not meet the rating criteria for an increased evaluation under Diagnostic Code 5214. As such, the preponderance of the evidence is against the claim for a higher rating. A separate compensable rating may be assigned if there are disabling effects due to a scar. Here, there are two scars associated with the Veteran's service-connected right wrist disability. There are multiple Diagnostic Codes designated for scars located on areas other than the head, face, or neck. The difference in disability rating depends on the size and severity of scar. 38 C.F.R. § 4.118; Diagnostic Codes 7801-7805 (2012). In the December 2007 VA examination, it was noted that the Veteran had two scars on his right wrist with one measuring 1.5 centimeters and the other measuring 3.5 centimeters. The examiner stated there was no palpable tenderness. The November 2008 VA examiner found the two scars to be 1.5 centimeters and 0.5 centimeters in length. The December 2011 VA examiner also noted the existence of these two scars and indicated that they are not painful, unstable, or that a total of area is not greater than 39 centimeters. Under Diagnostic Code 7801, the rating decision pertains to scars which are deep and nonlinear. In the instant case, December 2007 VA examiner reported that the Veteran's right wrist scars showed no palpable tenderness. Under Diagnostic Code 7802, a maximum 10 percent evaluation is warranted where a scar is superficial, nonlinear, and at least 144 square inches (929 square centimeters) in size. In the instant case, both of the Veteran's scar's measurements are less than the amount required under the code. As there is no Diagnostic Code 7803, the Board moves to Diagnostic Code 7804. This code provides for scars that are characterized as unstable and painful and the disability rating is dependent on the number of scars on the body. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The December 2007 examiner indicated that there was no tenderness in the scar and that there was no loss of covering of the skin over the scar. Finally, under Diagnostic Code 7805, scars are to be evaluated on any disabling effects not considered under Diagnostic Codes 7800-7804. The reports of the December 2007, November 2008, and December 2011 VA examinations does not indicate that there is inflammation, edema or keloid formation of the scars, or any signs of induration or inflexibility of the skin in the area of the scar. As it is not found that the Veteran's scars meet the criteria for a compensable disability rating, a separate rating is not warranted. 38 C.F.R § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2012). Carpal tunnel syndrome (CTS) is potentially ratable as a disability of the peripheral nerves. However, there is no evidence of record that the Veteran has CTS, and CTS is not shown on examination, despite his complaints of numbness. Specifically, a June 2008 MRI of the right wrist shows the Veteran's carpal tunnel is intact. Additional findings of the MRI report reflect the Veteran's right wrist disability represent old posttraumatic deformity of the wrist with previous tear of the scapholunate ligament, and a slight widening with proximal migration of the capitates. Accordingly, alternate rating for peripheral nerve disability is not available. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b) ; Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Accordingly, the Veteran and his wife are competent to describe the symptoms associated with his right wrist disability, as they testified in the January 2013 hearing concerning pain and limitation of motion. However, nothing in this lay evidence suggests his wrist is ankylosed or unstable, or otherwise meets any applicable criterion for a rating higher than 10 percent. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the instant case, the Veteran is already receiving the maximum scheduler rating under Diagnostic Code 5215. In addition, the Board does not find any evidence showing an increase in the severity in the limitation of motion or function of the right wrist. As such, a staged rating is not applicable. After a review of the entire record, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 10 percent for service-connected post-operative residuals of a right wrist disability. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 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 rating disability for the service-connected right wrist is rated at the maximum for limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. However, a higher percentage for a right wrist disability is contemplated by the rating criteria under Diagnostic Code 5214. This code allows a higher disability evaluation upon a showing of worsening symptomatolgy. Therefore, the rating criteria reasonably describe the Veteran's disability and referral for an extraschedular rating is not warranted. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability. In this case, the December 2011 VA examiner noted that the right wrist disability impacts the Veteran's ability to work as a corrections officer because of pain and swelling, but that he works full time. During his January 2013 hearing, the Veteran also Veteran asserted that he has had to give up a lot of his instructor positions with the Department of Corrections. While the Board concedes that the Veteran felt pain, he remains employed. Accordingly, Rice considerations are inapplicable in this case. ORDER Entitlement to a disability rating in excess of 10 percent for post-operative residuals of a right wrist injury is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs