Citation Nr: 1312424 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 05-28 610A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right wrist tendon repair (major), claimed as right wrist pain. 2. Entitlement to an initial compensable rating for scar residuals of excision of a ganglion cyst from the left wrist. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to October 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in December 2008, June 2010, December 2010, and August 2012, and was remanded for additional development. It now returns for further appellate review. The issue of entitlement to service connection for residuals of left wrist tendon repair, other than a scar, also claimed as left wrist pain, has been raised by the record. See VA Form 21-4138, received November 2004. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. For the entire appeal period, the Veteran's right wrist tendon repair was characterized by pain, weakness, and dorsiflexion and palmar flexion to no less than 40 degrees, without ankylosis. 3. For the entire appeal period, the Veteran's scar residuals of excision of a ganglion cyst from the left wrist has measured 1.75 sq. cm. at most, has been superficial and stable without pain or tenderness, and has not resulted in any limitation of function. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating in excess of 10 percent for right wrist tendon repair (major) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5024, 5214, 5215 (2012). 2. For the entire appeal period, the criteria for an initial compensable rating for scar residuals of excision of a ganglion cyst from the left wrist have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 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). The Veteran's claims arise from his disagreement with the initial evaluations following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice under this law is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered. In August 2012 the Board remanded the claim, directing the RO/AMC to obtain any relevant VA treatment records dated between June 26, 2002 and December 2006, as well as any relevant records dated after February 2011. The RO/AMC complied with this directive, obtaining VA treatment records dated June 26, 2002 through October 2012 from the VA Medical Centers (VAMCs) in Pensacola and Biloxi, and associating them with the electronic claims file. The Veteran has not identified any additional outstanding records that VA should seek to obtain on his behalf. The remand also directed that the January 2011 VA examiner prepare an addendum to her report, to include a discussion on the findings and conclusions set forth in the newly received VA outpatient treatment records. Such addendum opinion was submitted in September 2012. The Board finds that the RO/AMC substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was provided with VA examinations of the wrists in September 2004, February 2009, August 2010, and January 2011 (with an addendum in September 2012). The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected disabilities as they included interviews with the Veteran, review of the claims file, and physical examinations. The Veteran has not alleged, nor does the record show, that his service-connected right wrist disability or left wrist scar has worsened in severity since the most recent examination in September 2012. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Higher Ratings Claims The Veteran seeks higher initial ratings for his service-connected right wrist tendon repair, and his scar residuals of excision of a ganglion cyst from the left wrist. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. 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 Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Right wrist tendon repair Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The evidence in this case consistently shows that the Veteran is right-handed. Therefore, any right hand disability evaluation will correspond with the major ratings. The Veteran's right wrist tendon repair is currently rated as 10 percent disabling under DC 5024 for tenosynovitis. Under this DC, disabilities are rated based on limitation of motion of the affected part as arthritis. 38 C.F.R. § 4.71a, DC 5024 (2012). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, supra. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, supra. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The relevant evidence of record shows that throughout the appeal period the Veteran's right wrist disability has been productive of considerable pain, weakness, and functional impairment. The record shows pain, stiffness, swelling, reduced grip strength, and limited motion of the right wrist. The Veteran is already in receipt of the maximum 10 percent rating for his right wrist limitation of motion due to pain and weakness. A higher initial evaluation is therefore not possible for functional loss due to pain, weakness, excess fatigability, or incoordination. The Board has considered whether it may be appropriate to rate the Veteran's right wrist disability under other DCs. Limitation of motion of the wrist is evaluated under DC 5215 which provides for maximum 10 percent ratings for palmar flexion in line with forearm and dorsiflexion limited to less than 15 degrees, regardless of whether the wrist is major or minor. 38 C.F.R. § 4.71a, DC 5215. A June 2002 examination that occurred during service measured right wrist dorsiflexion to 70 degrees with some discomfort and palmar flexion to 80 degrees without pain. A May 2004 private treatment note observed "slight" loss of motion in the right wrist compared to the left and mild discomfort with extremes of movement. The September 2004 VA examiner measured active right wrist dorsiflexion to 40 degrees and palmar flexion to 50 degrees. The examiner noted that this examination was two to three months post-surgery. This range of motion produced discomfort at all levels but there was no additional limitation of motion with repetitive use. An August 2008 VA occupational therapy note measured right wrist dorsiflexion to 45 degrees and palmer flexion to 40 degrees. The February 2009 VA examiner measured active right wrist dorsiflexion to 50 degrees and palmar flexion to 55 degrees. The August 2010 VA examiner measured active right wrist dorsiflexion to 50 degrees and palmar flexion to 55 degrees after three repetitions. The January 2011 examiner measured active right wrist dorsiflexion to 80 degrees and palmar flexion to 65 degrees after three repetitions. In sum, during the appeal period the Veteran's dorsiflexion and palmar flexion were each to no less than 40 degrees. A higher initial evaluation is therefore not warranted under DC 5215. A higher rating is possible under DC 5214 for ankylosis of the wrist, but the record shows that the Veteran's right wrist is not ankylosed. While right wrist motion was limited at many examinations, as summarized above, he was still able to flex, extend, and have radial and ulnar deviation. None of the VA examiners or treatment notes reported ankylosis. Private treatment records dated September 2009 to September 2010 noted full range of motion of the upper extremities. Even with consideration of functional factors (to include the Veteran's complaints of pain), it is clear that he has retained some useful motion of his right wrist and rating the disability under DC 5214 is not appropriate. Therefore, an initial rating in excess of 10 percent for right wrist tendon repair is not warranted. Accordingly, for the entire appeal period, the Veteran is entitled to an initial rating of 10 percent, but no higher, for right wrist disability under DC 5024. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. at 53. B. Left wrist scar The Veteran's left wrist scar is currently rated as 0 percent disabling under DC 7805. The rating criteria for scar DCs were revised in October 2008. See 73 Fed. Reg. 52710 (effective October 23, 2008). However, because the Veteran did not specifically request consideration under the most recently amended ratings, only the criteria in effect prior to October 23, 2008, need be considered in this instance. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (for claims filed after August 30, 2002, and prior to October 23, 2008). A June 2002 examination that occurred during service, a May 2004 private treatment note, and the September 2004 VA examiner recorded a well-healed surgical scar on the left wrist. The 2004 examiner also noted it was stable. The February 2009 VA examiner described the left wrist scar as linear, nontender, and nonadherent, without ulceration, breakdown, distortion, asymmetry, disfigurement, or limitation of function. It measured 3.5 cm. long with a width ranging from 0.1 cm. to 0.5 cm. The August 2010 VA examiner noted that the left wrist scar was stable and that the Veteran had no current symptoms or complaints related to the scar. The scar was 3.5 cm. long, 0.3 cm. wide at its widest, and 0.1 cm. wide at its narrowest. It was nontender, superficial, and caused no limitation of function or motion. The January 2011 VA examiner noted the scar was stable, superficial, and non-linear, measuring 3 cm. long by 0.3 cm. wide for a total area of 0.5 sq. cm. The scar was not tender on examination and caused no limitation of motion or function. The Board has considered whether it may be appropriate to rate the Veteran's scar under DCs other than 7805. Diagnostic Code 7800 and DC 7801 evaluated disfigurement and scars of the head, face, and neck, of which the Veteran has none. DC 7802 provided a 10 percent rating for scars, other than head, face, or neck, that were superficial and that did not cause limited motion, with an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2002). While all the evidence of record shows that the Veteran's scar is superficial and does not cause limited motion, it does not have an area of 929 square centimeters or greater. The measurements of record vary, showing a length of 3 cm. to 3.5 cm., and a width ranging from 0.1 cm. at its narrowest to 0.5 cm. at its widest. Therefore, at most, the scar's area is 1.75 sq. cm. (3.5 cm. by 0.5 cm.) It is clear that the area of the scar is not 929 sq. cm. or greater. Therefore, DC 7802 is not applicable to the left wrist scar. DC 7803 provided that a superficial, unstable scar warranted a 10 percent rating. 38 C.F.R. § 4.118, DC 7803 (2002). All of the medical evidence shows that the Veteran's scar is superficial and stable, and the Veteran has not asserted otherwise. DC 7804 provided that a 10 percent disability evaluation was warranted for superficial scars that are painful on objective demonstration. 38 C.F.R. § 4.118, DC 7804 (2002). The 2009, 2010, and 2011 VA examiners noted that the scar was nontender. All of the medical evidence shows that the Veteran's scar was not painful on objective demonstration and the Veteran does not contend otherwise. Therefore, these scar codes are inapplicable. Having determined that none of the other scar codes are applicable to the Veteran's scar, the Board finds that DC 7805, which evaluates "scars, other" is the only appropriate rating code for the Veteran's scar. Effective August 30, 2002, DC 7805 evaluated scars on limitation of function of part affected. 38 C.F.R. § 4.118, DC 7805 (2002). The record does not show any subjective complaints regarding the left wrist scar, with the exception of the Veteran's description of it as "ugly" in a lay statement. Ugliness is not a limitation of function. The 2010 VA examiner specifically noted that the Veteran had no current symptoms or complaints related to the scar. Throughout the appeal period, the scar is repeatedly described as well-healed. As to limitation of function of the part affected, while the record shows that the left wrist has limited function, the Veteran does not actually assert that his scar causes that limitation. Moreover, the 2009, 2010, and 2011 VA examiners all explicitly stated that the scar caused no limitation of function, and the 2010 and 2011 examiners added that it caused no limitation of motion. The Board finds that the scar caused no limitation of function of the part affected, and therefore is not ratable under DC 7805. The Board finds that the Veteran is not entitled to a compensable rating for scar residuals of excision of a ganglion cyst from the left wrist. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). C. Other considerations The Board has considered whether staged ratings under Hart are appropriate for the Veteran's service-connected disabilities. However, the Board finds that his symptomatology has been stable throughout the period of the appeal. Therefore, staged ratings are not warranted The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extraschedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (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. When the analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. However, in this case, the rating criteria reasonably describe the claimant's disability level and symptomatology. The Veteran's right wrist disability is characterized by pain, stiffness, swelling, weakness, reduced grip strength, and dorsiflexion and palmar flexion limited to no less than 40 degrees, without ankylosis. These manifestations are contemplated in the applicable rating criteria. His left wrist scar is superficial, stable, nontender, smaller than 144 square inches, asymptomatic, and does not cause limitation of function. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his descriptions of right wrist and scar symptomatology are consistent with the degrees of disability addressed by such evaluations. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's right wrist disability or left wrist scar, the question of entitlement to a TDIU is not raised. ORDER An initial rating in excess of 10 percent for right wrist tendon repair (major) is denied. An initial compensable rating for scar residuals of excision of a ganglion cyst from the left wrist is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs