Citation Nr: 1310387	
Decision Date: 03/27/13    Archive Date: 04/09/13

DOCKET NO.  07-38 334	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a rating in excess of 10 percent for posttraumatic arthritis of the left wrist.  


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel

INTRODUCTION

The Veteran had active military service from June 1992 to August 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

In August 2007 and October 2009, the Veteran testified at hearings conducted before a Decision Review Officer and the undersigned Veterans Law Judge, respectively.  Transcripts of both hearings have been associated with the claims file.  

The case was remanded by the Board in December 2009 to obtain additional treatment records and to afford the Veteran a new VA examination.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Following the Board's Remand, the RO issued a rating decision in November 2012 that granted service connection for left wrist radial neuropathy, evaluated as 20 percent disabling effective the date of the Veteran's increased rating claim.  As the Veteran has not expressed disagreement with the disability rating and/or effective date assigned, the Board concludes that the only issue before it is an increased rating for posttraumatic arthritis of the left wrist.  


FINDING OF FACT

The Veteran's posttraumatic arthritis of the left wrist equates to disability tantamount to painful limited motion with dorsiflexion no worse than 20 degrees; palmar flexion no worse than 30 degrees; an asymptomatic scar; and has not resulted in ankylosis.



CONCLUSION OF LAW

The criteria for a rating of in excess of 10 percent for posttraumatic arthritis of the left wrist have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5215 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's 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, 3.1756(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Here, a pre-decisional letter dated in August 2006 complied with VA's duty to notify the Veteran with respect to his increased rating claim.  Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  It in particular notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In addition, the letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  

Also, the RO obtained the Veteran's post-service medical records in furtherance of his claim.  The Veteran has not identified any additional pertinent medical records which have not been obtained and associated with the claims folder.  Thus, the Board finds that VA has met its duty to assist the Veteran in terms of obtaining pertinent medical records.  38 C.F.R. § 3.159(c)(1)-(3).  

In addition, pertinent VA examinations/opinions with respect to the issue adjudicated herein were obtained in August 2006 and January 2011.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examinations/opinions obtained in this case are sufficient, as they considered all of the pertinent evidence of record, including the Veteran's statements, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria.  VA's duty to assist with respect to obtaining a VA examination with regard to the issue adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4).  

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.  The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two evaluations should 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.  38 C.F.R. § 4.7.  

In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  Here, as noted in the background discussion below, the effects of pain on use, functional loss, and incoordination were taken into account in assessing the range of motion of the Veteran's service-connected joint disability.

The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for initial rating and increased-rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).  As discussed in detail below, staged ratings are not warranted in this claim.  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.  38 C.F.R. § 4.7.  

The Veteran contends that he is entitled to a rating in excess of 10 percent for his left wrist disability due to the severity and frequency of his symptomatology.  The Board finds that the pertinent medical findings, as shown in the examinations conducted during the current appeal, directly address the criteria under which this service-connected disability is evaluated and are, thus, more probative than the subjective evidence of complaints regarding the severity of the pertinent symptomatology.

In this case, the Veteran has been diagnosed with posttraumatic arthritis of the left wrist.  This disability has been shown to cause limitation of motion of the left wrist.  This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5010, which evaluates impairment from arthritis due to trauma that is substantiated by X-ray findings.  DC 5010 calls for the disability to be rated as degenerative arthritis.  Degenerative arthritis is evaluated under 38 C.F.R. § 4.71a, DC 5003.

Pursuant to DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling.  The 20 percent and 10 percent ratings based on X-ray findings without limitation of motion will not be combined with ratings based on limitation of motion.  38 C.F.R. § 4.71a, DC 5003.  The Board observes that the wrist is considered a major joint.  38 C.F.R. § 4.45(f).  

Limitation of motion of the wrist is evaluated under 38 C.F.R. § 4.71a, DC 5215.  Specifically, pursuant to DC 5215, a 10 percent rating is warranted for both the major and minor arm when dorsiflexion is less than 15 degrees or palmar flexion is limited in line with forearm.  38 C.F.R. § 4.71a, DC 5215 (2012).  As the Veteran has been shown to be right-handed, ratings for the minor arm apply.  

The Board observes that the Veteran is currently receiving the only rating available under DC 5215.  DC 5214, which evaluates impairment from ankylosis of the wrist, provides for a 20 percent rating when there is favorable ankylosis in 20 degrees to 30 degrees dorsiflexion.  38 C.F.R. § 4.71a, DC 5214 (2012).  A 30 percent rating is warranted for ankylosis in any other position, except favorable.  Id.  A 40 percent rating is warranted for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation.  Id.  

A VA treatment record dated in June 2006 reveals that the Veteran complained of pain and weakness.  Records dated from June 2006 through August 2006 indicate that the Veteran had 70 degrees of supination.  These records do not show a finding of ankylosis, or any opinion indicating that the Veteran's wrist disability approximated ankylosis.

The Veteran was afforded a fee-based examination in August 2006.  His symptoms included pain rated as seven out of ten (7/10), weakness, numbness, and giving way.  At the time of pain, he could function with rest; with activity he experienced pain and numbness.  His condition did not cause incapacitation.  He had not had any prosthetic implants of the joint.  Functional impairment included difficulty squeezing the left hand because it led to pain and numbness.  Examination revealed a healed linear scar 10 centimeters by 0.2 centimeters; it was flat without change in pigmentation.  Range of motion testing revealed 40 degrees of dorsiflexion with pain at 40 degrees; palmar flexion to 80 degrees; radial deviation to 20 degrees; and ulnar deviation to 45 degrees.  Joint function was additionally limited by pain, fatigue, weakness, lack of endurance and incoordination after repetitive use with pain having the major functional impact.  Joint function was additionally limited by zero degrees.  The Veteran was diagnosed with status post left radius fracture with surgical mobilization and scar.  The effect on the Veteran's usual occupation was pain with sustained use of a wrench; the effect on daily activities was pain and weakness with ongoing activities.  

VA treatment records dated from August 2006 through November 2010 do not reveal any findings of ankylosis, or any medical opinions indicating that the Veteran's left wrist disability symptoms approximated ankylosis.  Records dated in November 2006, December 2006, June 2007, and July 2007 all showed the Veteran has having extension to 45 degrees; palmar flexion to 65 degrees; ulnar deviation to 35 degrees; and radial deviation to 25 degrees.  The Veteran was shown to have extension to 60 degrees; palmar function to 70 degrees; and ulnar deviation and radial deviation both to 10 degrees in August 2007 and October 2007.  

At his August 2007 hearing, the Veteran testified that he did not have functional loss, only loss of strength.  August 2007 Hearing Transcript (H.T.) at 6.  He also testified about having pain.  Id. at 3.  The Veteran indicated that he could no longer participate in activities that he enjoyed such as water skiing and tubing.  Id. at 5.  At the October 2009 hearing, the Veteran testified that his disability affected his employment as an engineer.  October 2009 Hearing Transcript (T.) at 3.  He tried to avoid using his left hand because he did not want to experience pain.  Id. at 4.  The Veteran indicated having pain with use for work as well as with recreational activities.  Id.  

The Veteran was afforded a VA examination in January 2011.  His reported symptoms included pain, stiffness, weakness, decreased speed of joint motion, and tenderness; he denied deformity, giving way, instability, incoordination, other symptoms, episodes of dislocation or subluxation, locking episodes and effusion.  Examination revealed tenderness, pain at rest and guarding of movement.  Abnormal findings included tenderness over lateral/radial wrist.  Range of motion testing revealed dorsiflexion to 20 degrees; palmar flexion to 30 degrees; radial deviation to 10 degrees; and ulnar deviation to 30 degrees.  There was objective evidence of pain on motion.  Following repetition, the Veteran had objective evidence of pain, but there were no additional limitations of motion.  There was no joint ankylosis.  The Veteran was diagnosed with traumatic arthritis.  

The Veteran was still employed full-time as a shift engineer.  His disability had significant effects on his occupation due to decreased manual dexterity, problems with lifting and carrying, difficulty reaching and pain.  The Veteran had to be assigned different duties.  The disability had a mild effect on feeding, toileting, and grooming; a moderate effect on chores, shopping, traveling, bathing, dressing and driving; a severe effect on exercise and recreation; and prevented sports.  Occupational and daily living activities involving left wrist range of motion, lifting, carrying, pushing, pulling, gripping/twisting, and cold/damp weather exposure exacerbated the pain.  A January 2011 neurologic examination for his wrist indicated that he had decreased grip strength and pain.

Based on a review of the evidence, the Board concludes that a rating in excess of 10 percent is not warranted at any time during the pendency of this appeal.  The only rating available for limited motion of one major joint under DC 5003 is 10 percent.  As noted above, a 20 percent rating under DC 5003 is warranted in the absence of limitation of motion involving of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  As the Veteran has been shown to have limited motion, and his condition does not involve two or more joints, a 20 percent rating pursuant to DC 5003 is not warranted.  

Additionally, the only rating available for limited motion of the wrist under DC 5215 is 10 percent.  Absent ankylosis for a 20 percent rating under DC 5214, the Veteran is not entitled to a higher rating.  In this case, none of the Veteran's treatment records and examinations indicate that he has ankylosis; the January 2011 examiner specifically found that there was no ankylosis.  Nor has any medical professional indicated that the severity of the Veteran's disability approximates that of ankylosis.  The Veteran's contentions throughout this appeal have shown that he experiences pain, numbness, weakness and functional loss of strength.  He has not indicated having ankylosis or that his disability approximates ankylosis.  Therefore, the Board concludes that a rating in excess of 10 percent for posttraumatic arthritis of the left wrist is not warranted.

In reaching this conclusion, the Board finds that the currently assigned 10 percent rating adequately portrays the functional impairment, pain, and weakness that he experiences as a consequence of use of his left wrist.  See DeLuca, 8 Vet. App. at 204-207; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5215.  The evidence reflects constant pain.  The Veteran's left wrist disability has also been shown to affect his daily life and occupation due to exacerbated pain during range of motion, lifting, carrying, pushing, pulling, gripping/twisting, and cold/damp weather exposure.  Even with pain exacerbations during activity, the evidence does not show that the Veteran's left wrist disability equates to ankylosis such that a rating in excess of 10 percent is warranted.  Consequently, the Board concludes that the currently assigned 10 percent rating adequately compensates the Veteran for this disability.

Furthermore, to the extent that the Veteran has grip weakness and loss of strength, as noted in the Introduction, the Veteran was assigned a separate 20 percent rating for radial neuropathy effective the date of the increased rating claim.  Therefore, that symptomatology is being compensated for by the separate 20 percent rating.  Here, the Veteran's 20 percent neurologic rating and 10 percent orthopedic rating combine to a 30 percent rating.  See 38 C.F.R. § 4.25 (2012).  Thus, the Veteran's total rating for his left wrist is 30 percent.  After reviewing all of the evidence of record, the Board concludes that the combined 30 percent rating for both orthopedic and neurologic manifestations of the left wrist disability adequately compensates the Veteran.  

The Board acknowledges the representative's February 2013 argument that the Veteran's wrist symptoms should be rated by analogy as wrist replacement (prosthesis) under DC 5053.  The minimum rating for a wrist replacement is 20 percent.  38 C.F.R. § 4.71a, DC 5053 (2012).  The Board observes that when an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin.  See 38 C.F.R. § 4.20 (2012).

In this case, the Veteran has been diagnosed with traumatic arthritis, which is a disability listed in the rating schedule under DC 5010.  As the Veteran's condition is not unlisted, the Board finds that a rating by analogy for a wrist replacement is not warranted.  

Moreover, the Board has considered whether a separate rating is warranted for the scar resulting from left wrist surgery for this disability.  As discussed in the August 2006 examination above, the Veteran has a scar on his left wrist as the result of surgery.  The Board notes amendments were recently made to the rating criteria for skin, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).  However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), a compensable rating for a scar will only be evaluated under the rating criteria in effect prior to October 23, 2008.  Id.  See also 38 C.F.R. § 4.118.

A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep or cause limitation of motion and exceeds 6 square inches (39 sq. cm.).  The Veteran's scar does not meet that criteria.  A compensable rating under DC 7802 for superficial scars that do not cause limitation of motion requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown.  Scars that are unstable warrant a 10 percent rating under DC 7803.  A note under DC 7803 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  The Veteran's scar has not been shown to be unstable, rendering DC 7803 inapplicable.  The scar was not painful on examination.  So, DC 7804 is also inapplicable.  Lastly, no limitation of function of affected part due to the scar has been shown.  So, a rating pursuant to DC 7805 is not warranted.  38 C.F.R. § 4.118, DCs 7801-7805 (2008).

Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record shows that a rating in excess of 10 percent rating is not warranted at any time during the pendency of this appeal.  The Board finds, therefore, that the evidence of record does not support the schedular criteria required for a rating of 20 percent for this service-connected disability.  

In addition, the Board finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards.  See 38 C.F.R. § 3.321 (2012).  The current evidence of record does not demonstrate that the left wrist disability has resulted in frequent periods of hospitalization or in marked interference with employment.  § 3.321.  

In this regard, the Board notes that it is undisputed that the Veteran's left wrist disability has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account.  The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2012).  In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the problems with pain and the effect on his daily life.  38 C.F.R. §§ 4.10, 4.40.  Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

Moreover, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected posttraumatic arthritis of the left wrist.  Indeed, the Veteran has been shown to be employed throughout this appeal.  The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has, therefore, not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

Entitlement to a rating in excess of 10 percent for posttraumatic arthritis of the left wrist is denied.



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs